68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1892
A-Engrossed
Senate Bill 385
Ordered by the Senate April 20
Including Senate Amendments dated April 20
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Requires - } { + Allows court to require + } plaintiff
who previously dismissed action with prejudice and who refiles
action to pay
{ - all - } { + reasonable + } attorney fees incurred by
defendants in dismissed action. { + Establishes factors that
court must consider in determining whether to award attorney fees
in case in which attorney fees are authorized by statute.
Establishes additional prevailing party fee. Requires mandatory
arbitration in all courts. Modifies procedural requirements
relating to arbitration. + } { - Allows defendant to recover
certain attorney fees and expert witness expenses from plaintiff
if defendant offers to allow judgment be taken against defendant
and plaintiff fails to obtain more favorable judgment than
offered. - } Allows settlement conference at any time.
Requires award of attorney fees for certain misconduct,
including causing mistrial. Requires sanctions for certain false
certifications in pleadings, motions, papers and arguments to
court.
{ - Requires award of attorney fees to party who prevails on
motion for summary judgment if summary judgment adjudicates all
claims or defenses of party against whom judgment is entered. - }
{ + Modifies grounds for granting of motion for summary
judgment. + }
{ - Authorizes award of attorney fees to prevailing party in
any action based on contract or common law tort if amount claimed
is $20,000 or less. - } { + Authorizes award of attorney fees
against defendant when defendant removes action from small claims
department. + }
Amends statutes allowing or requiring award of attorney fees to
prevailing plaintiff to allow or require award of attorney fees
to prevailing party.
A BILL FOR AN ACT
Relating to civil procedure; creating new provisions; and
amending ORS 20.090, 20.094, 20.096, 20.105, 20.107, 20.125,
20.190, 30.075, 30.184, 30.190, 30.680, 30.820, 30.822, 30.825,
30.860, 30.862, 30.864, 30.960, 36.400, 36.405, 36.410, 36.415,
36.425, 46.465, 46.475, 46.485, 59.115, 59.127, 59.255, 59.670,
59.890, 59.925, 62.335, 62.440, 65.207, 65.224, 65.781, 70.415,
74A.3050, 74A.4040, 79.5070, 83.650, 86.260, 86.265, 86.720,
86.742, 90.710, 92.018, 96.030, 97.760, 105.831, 133.739,
166.725, 192.590, 223.615, 279.365, 307.525, 311.673, 311.679,
311.711, 311.771, 346.630, 346.687, 346.690, 431.905, 455.440,
460.165, 462.110, 469.421, 474.085, 478.965, 479.265, 480.600,
527.665, 540.120, 540.250, 545.104, 545.502, 548.620, 548.660,
553.560, 554.140, 583.126, 583.146, 585.150, 618.516, 621.246,
645.225, 646.140, 646.240, 646.359, 646.632, 646.638, 646.641,
646.642, 646.760, 646.770, 646.775, 646.780, 646.876, 648.135,
650.020, 650.065, 650.250, 652.230, 653.055, 653.285, 656.052,
658.220, 658.415, 659.160, 659.165, 661.280, 671.578, 671.705,
692.180, 697.762, 697.792, 701.067, 722.116, 722.118, 731.314,
731.737, 746.300, 746.350, 746.680, 756.185, 759.720, 759.900,
760.540, 774.210, 815.410 and 815.415 and ORCP 17, 47 C and 54.
Be It Enacted by the People of the State of Oregon:
{ +
OFFERS OF COMPROMISE, SETTLEMENT AND PREVIOUSLY + }
{ +
DISMISSED ACTIONS + }
SECTION 1. ORCP 54 is amended to read:
A. Voluntary dismissal; effect thereof.
A(1) By plaintiff; by stipulation. Subject to the provisions of
Rule 32 D and of any statute of this state, an action may be
dismissed by the plaintiff without order of court (a) by filing a
notice of dismissal with the court and serving such notice on the
defendant not less than five days prior to the day of trial if no
counterclaim has been pleaded, or (b) by filing a stipulation of
dismissal signed by all adverse parties who have appeared in the
action. Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice, except that a
notice of dismissal operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in any court of
the United States or of any state an action against the same
parties on or including the same claim unless the court directs
that the dismissal shall be without prejudice. Upon notice of
dismissal or stipulation under this subsection, the court shall
enter a judgment of dismissal.
A(2) By order of court. Except as provided in subsection (1) of
this section, an action shall not be dismissed at the plaintiff's
instance save upon judgment of dismissal ordered by the court and
upon such terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the service
upon the defendant of the plaintiff's motion to dismiss, the
defendant may proceed with the counterclaim. Unless otherwise
specified in the judgment of dismissal, a dismissal under this
subsection is without prejudice.
A(3) Costs and disbursements. When an action is dismissed under
this section, the judgment may include any costs and
disbursements, including attorney fees, provided by rule or
statute. Unless the circumstances indicate otherwise, the
dismissed party shall be considered the prevailing party.
B. Involuntary dismissal.
B(1) Failure to comply with rule or order. For failure of the
plaintiff to prosecute or to comply with these rules or any order
of court, a defendant may move for a judgment of dismissal of an
action or of any claim against such defendant.
B(2) Insufficiency of evidence. After the plaintiff in an
action tried by the court without a jury has completed the
presentation of plaintiff's evidence, the defendant, without
waiving the right to offer evidence in the event the motion is
not granted, may move for a judgment of dismissal on the ground
that upon the facts and the law the plaintiff has shown no right
to relief. The court as trier of the facts may then determine
them and render judgment of dismissal against the plaintiff or
may decline to render any judgment until the close of all the
evidence. If the court renders judgment of dismissal with
prejudice against the plaintiff, the court shall make findings as
provided in Rule 62.
B(3) Dismissal for want of prosecution; notice. Not less than
60 days prior to the first regular motion day in each calendar
year, unless the court has sent an earlier notice on its own
initiative, the clerk of the court shall mail notice to the
attorneys of record in each pending case in which no action has
been taken for one year immediately prior to the mailing of such
notice, that a judgment of dismissal will be entered in each such
case by the court for want of prosecution, unless on or before
such first regular motion day, application, either oral or
written, is made to the court and good cause shown why it should
be continued as a pending case. If such application is not made
or good cause shown, the court shall enter a judgment of
dismissal in each such case. Nothing contained in this subsection
shall prevent the dismissal by the court at any time, for want of
prosecution of any action upon motion of any party thereto.
B(4) Effect of judgment of dismissal. Unless the court in its
judgment of dismissal otherwise specifies, a dismissal under this
section operates as an adjudication without prejudice.
C. Dismissal of counterclaim, cross-claim, or third party
claim. The provisions of this rule apply to the dismissal of any
counterclaim, cross-claim, or third party claim.
D. Costs of previously dismissed action.
{ + D(1) + } If a plaintiff who has once dismissed an action
in any court commences an action based upon or including the same
claim against the same defendant, the court may make such order
for the payment of any unpaid judgment for costs and
disbursements against plaintiff in the action previously
dismissed as it may deem proper and may stay the proceedings in
the action until the plaintiff has complied with the order.
{ + D(2) If a party who previously asserted a claim,
counterclaim, cross-claim or third party claim that was dismissed
with prejudice subsequently makes the same claim, counterclaim,
cross-claim or third party claim against the same party, the
court shall enter a judgment dismissing the claim, counterclaim,
cross-claim or third party claim and may enter a judgment
requiring the payment of reasonable attorney fees incurred by the
party in obtaining the dismissal. + }
E. Compromise; effect of acceptance or rejection. Except as
provided in ORS 17.065 through 17.085, the party against whom a
claim is asserted may, at any time up to 10 days prior to trial,
serve upon the party asserting the claim an offer to allow
judgment to be given against the party making the offer for the
sum, or the property, or to the effect therein specified. If the
party asserting the claim accepts the offer, the party asserting
the claim or such party's attorney shall endorse such acceptance
thereon, and file the same with the clerk before trial, and
within three days from the time it was served upon such party
asserting the claim; and thereupon judgment shall be given
accordingly, as a stipulated judgment. Unless agreed upon
otherwise by the parties, costs, disbursements, and attorney fees
shall be entered in addition as part of such judgment as provided
in Rule 68. If the offer is not accepted and filed within the
time prescribed, it shall be deemed withdrawn, and shall not be
given in evidence on the trial; and if the party asserting the
claim fails to obtain a more favorable judgment, the party
asserting the claim shall not recover costs, { + prevailing
party fees, + } disbursements, { - and - } { + or + }
attorney fees incurred after the date of the offer, but the party
against whom the claim was asserted shall recover of the party
asserting the claim costs and disbursements { + , not including
prevailing party fees, + } from the time of the service of the
offer.
{ + F. Settlement conferences. + } { + A settlement
conference may be ordered by the court at any time at the request
of any party or upon the court's own motion. Unless otherwise
stipulated to by the parties, a judge other than the judge who
will preside at trial shall conduct the settlement
conference. + }
{ +
AWARD OF ATTORNEY FEES AS SANCTION FOR FALSE OR FRIVOLOUS + }
{ +
PLEADINGS AND OTHER MISCONDUCT + }
SECTION 2. ORS 20.105 is amended to read:
20.105. (1) In any civil action, suit or other proceeding in a
district court, a circuit court or the Oregon Tax Court, or in
any civil appeal to or review by the Court of Appeals or Supreme
Court, the court { - may, in its discretion, - } { +
shall + } award reasonable attorney fees { - appropriate in the
circumstances - } to a party against whom a claim, defense or
ground for appeal or review is asserted, if that party is a
prevailing party in the proceeding and to be paid by the party
asserting the claim, defense or ground, upon a finding by the
court that the party willfully disobeyed a court order or
{ - acted in bad faith, wantonly or solely for oppressive
reasons - } { + that there was no objectively reasonable basis
for asserting the claim, defense or ground for appeal + }.
(2) All attorney fees paid to any agency of the state under
this section shall be deposited to the credit of the agency's
appropriation or cash account from which the costs and expenses
of the proceeding were paid or incurred. If the agency obtained
an Emergency Board allocation to pay costs and expenses of the
proceeding, to that extent the attorney fees shall be deposited
in the General Fund available for general governmental expenses.
SECTION 3. ORS 20.125 is amended to read:
20.125. In the case of a mistrial in a civil or criminal
action, if the court determines that the mistrial was caused by
the deliberate misconduct of an attorney, the court, upon motion
by the opposing party or upon motion of the court, { - may - }
{ + shall + } assess { + against the attorney causing the
mistrial + } costs and disbursements, as defined in ORCP 68,
{ - of - } { + and reasonable attorney fees incurred by + }
the opposing party { - against the attorney causing the
mistrial - } { + as a result of the misconduct + }. { - Those
costs and disbursements may be assessed against the attorney for
the trial that ended in the mistrial. - }
SECTION 4. ORCP 17 is amended to read:
A. Signing by party or attorney; certificate. Every pleading,
motion and other paper of a party represented by an attorney
shall be signed by at least one attorney of record who is an
active member of the Oregon State Bar. A party who is not
represented by an attorney shall sign the pleading, motion or
other paper and state the address of the party. Pleadings need
not be verified or accompanied by affidavit. { - The signature
constitutes a certificate that the person has read the pleading,
motion or other paper, that to the best of the knowledge,
information and belief of the person formed after reasonable
inquiry it is well grounded in fact and is warranted by existing
law or a good faith argument for the extension, modification or
reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation. - }
B. Pleadings, motions and other papers not signed. If a
pleading, motion or other paper is not signed, it shall be
stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant.
{ - C. Sanctions. If a pleading, motion or other paper is
signed in violation of this rule, the court upon motion or upon
its own initiative shall impose upon the person who signed it, a
represented party, or both, an appropriate sanction, which may
include an order to pay to the other party or parties the amount
of the reasonable expenses incurred because of the filing of the
pleading, motion or other paper, including a reasonable attorney
fee. - }
{ + C. Certifications to court. + }
{ + C(1) An attorney or party who signs, files or otherwise
submits an argument in support of a pleading, motion or other
paper makes the certifications to the court identified in
subsections (2) to (5) of this section, and further certifies
that the certifications are based on the person's reasonable
knowledge, information and belief, formed after the making of
such inquiry as is reasonable under the circumstances.
C(2) A party or attorney certifies that the pleading, motion or
other paper is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
C(3) An attorney certifies that the claims, defenses, and other
legal positions taken in the pleading, motion or other paper are
warranted by existing law or by a nonfrivolous argument for the
extension, modification or reversal of existing law or the
establishment of new law.
C(4) A party or attorney certifies that the allegations and
other factual assertions in the pleading, motion or other paper
are supported by evidence. Any allegation or other factual
assertion that the party or attorney does not wish to certify to
be supported by evidence must be specifically identified. The
attorney or party certifies that the attorney or party reasonably
believes that an allegation or other factual assertion so
identified will be supported by evidence after further
investigation and discovery.
C(5) The party or attorney certifies that any denials of
factual assertion are supported by evidence. Any denial of
factual assertion that the party or attorney does not wish to
certify to be supported by evidence must be specifically
identified. The attorney or party certifies that the attorney or
party believes that a denial of a factual assertion so identified
is reasonably based on a lack of information or belief. + }
{ + D. Sanctions. + }
{ + D(1) The court may impose sanctions against a person or
party who is found to have made a false certification under
section C of this rule, or who is found to be responsible for a
false certification under section C of this rule. A sanction may
be imposed under this section only after notice and an
opportunity to be heard are provided to the party or attorney. A
law firm is jointly liable for any sanction imposed against a
partner, associate or employee of the firm, unless the court
determines that joint liability would be unjust under the
circumstances.
D(2) Sanctions may be imposed under this section upon motion of
a party or upon the court's own motion. If the court seeks to
impose sanctions on its own motion, the court shall direct the
party or attorney to appear before the court and show cause why
the sanctions should not be imposed. The court may not issue an
order to appear and show cause under this subsection at any time
after the filing of a voluntary dismissal, compromise or
settlement of the action with respect to the party or attorney
against whom sanctions are sought to be imposed.
D(3) A motion by a party to the proceeding for imposition of
sanctions under this section must be made separately from other
motions and pleadings, and must describe with specificity the
alleged false certification. A motion for imposition of sanctions
based on a false certification under subsection C(4) of this rule
may not be filed until 120 days after the filing of a complaint
if the alleged false certification is an allegation or other
factual assertion in a complaint filed within 60 days of the
running of the statute of limitations for a claim made in the
complaint. Sanctions may not be imposed against a party until at
least 21 days after the party is served with the motion in the
manner provided by Rule 9. Notwithstanding any other provision of
this section, the court may not impose sanctions against a party
if, within 21 days after the motion is served on the party, the
party amends or otherwise withdraws the pleading, motion, paper
or argument in a manner that corrects the false certification
specified in the motion. If the party does not amend or otherwise
withdraw the pleading, motion, paper or argument but thereafter
prevails on the motion, the court may order the moving party to
pay to the prevailing party reasonable attorney fees incurred by
the prevailing party by reason of the motion for sanctions.
D(4) Sanctions under this section must be limited to amounts
sufficient to reimburse the moving party for attorney fees and
other expenses incurred by reason of the false certification,
including reasonable attorney fees and expenses incurred by
reason of the motion for sanctions, and amounts sufficient to
deter future false certification by the party or attorney and by
other parties and attorneys. The sanction may include nonmonetary
penalties and monetary penalties payable to the court. The
sanction must include an order requiring payment of reasonable
attorney fees and expenses incurred by the moving party by reason
of the false certification.
D(5) An order imposing sanctions under this section must
specifically describe the false certification and the grounds for
determining that the certification was false. The order must
explain the grounds for the imposition of the specific sanction
that is ordered. + }
{ + E. Rule not applicable to discovery. This rule does not
apply to any motion, pleading or conduct that is subject to
sanction under Rule 46. + }
{ +
SUMMARY JUDGMENT + }
SECTION 5. ORCP 47 C is amended to read:
C. Motion and proceedings thereon. The motion and all
supporting documents shall be served and filed at least 45 days
before the date set for trial. The adverse party shall have 20
days in which to serve and file opposing affidavits and
supporting documents. The moving party shall have five days to
reply. The court shall have discretion to modify these stated
times. The judgment sought shall be rendered forthwith if the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. { + No genuine issue as to a material fact
exists if, based upon the record before the court viewed in a
manner most favorable to the adverse party, no objectively
reasonable juror could return a verdict for the adverse
party. + } A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a
genuine issue as to the amount of damages.
{ +
ATTORNEY FEE AWARDS + }
SECTION 6. { + (1) A court shall consider the following
factors in determining whether to award attorney fees in any case
in which attorney fees are 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 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 appropriate
under the circumstances of the case.
(2) A court shall consider the factors specified in subsection
(1) of this section in determining the amount of an award of
attorney fees in any case in which attorney fees are authorized
by statute and in which the court has discretion to decide
whether to award attorney fees. In addition, the court shall
consider the following factors in determining the amount of an
award of attorney fees in those cases:
(a) The time and labor required in the proceeding, the novelty
and difficulty of the questions involved in the proceeding and
the skill needed to properly perform the legal services.
(b) The likelihood, if apparent to the client, that the
acceptance of the particular employment by the attorney would
preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar
legal services.
(d) The amount involved in the controversy and the results
obtained.
(e) The time limitations imposed by the client or the
circumstances of the case.
(f) The nature and length of the attorney's professional
relationship with the client.
(g) The experience, reputation and ability of the attorney
performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
(3) In any appeal from the award or denial of an attorney fee
subject to this section, the court reviewing the award may not
modify the decision of the court in making or denying an award,
or the decision of the court as to the amount of the award,
except upon a finding of an abuse of discretion.
(4) Nothing in this section authorizes the award of an attorney
fee in excess of a reasonable attorney fee. + }
{ +
PREVAILING PARTY FEES + }
SECTION 7. ORS 20.190 is amended to read:
20.190. { + (1) Except as provided in subsections (2) to (5)
of this section, + } a prevailing party in a civil action or
proceeding who has a right to recover costs and disbursements in
the following cases also has a right to recover, as a part of the
costs and disbursements, the following additional amounts:
{ - (1) - } { + (a) + } In the Supreme Court or Court of
Appeals, on an appeal, $100.
{ - (2) - } { + (b) + } In a circuit court or district
court:
{ - (a) - } { + (A) + } When judgment is given without
trial of an issue of law or fact or on an appeal, $50; or
{ - (b) - } { + (B) + } When judgment is given after trial
of an issue of law or fact, $75.
{ - (3) - } { + (c) + } In a small claims department, a
county court or justice's court, one-half of the amount provided
for in
{ - subsection (2) of this section - } { + paragraph (b) of
this subsection.
(2) In lieu of the prevailing party fee provided for in
subsection (1) of this section, in any civil action or proceeding
in a district or circuit court in which recovery of money or
damages is sought, a prevailing party who has a right to recover
costs and disbursements also has a right to recover, as a part of
the costs and disbursements, the following additional amounts:
(a) In a circuit court:
(A) When judgment is given without trial of an issue of law or
fact, $500; or
(B) When judgment is given after trial of an issue of law or
fact, $1,000.
(b) In a district court:
(A) When judgment is given without trial of an issue of law or
fact, $250; or
(B) When judgment is given after trial of an issue of law or
fact, $500.
(3) In addition to the amounts provided for in subsection (2)
of this section, in any civil action or proceeding in a district
or circuit court in which recovery of money or damages is sought,
a circuit court may award to the prevailing party up to an
additional $10,000 as a prevailing party fee, and a district
court may award up to an additional $5,000 as a prevailing party
fee. The court shall consider the following factors in making an
award under the provisions of this subsection:
(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 a larger prevailing party
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 a larger prevailing party
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 in pursuing settlement of the dispute.
(g) Such other factors as the court may consider appropriate
under the circumstances of the case.
(4) Nonprevailing parties are jointly liable for the prevailing
party fees provided for in this section. A court may not award
more than one prevailing party fee to a prevailing party under
this section, and, upon being paid the amount of the award, the
prevailing party may not seek recovery of any additional amounts
under the provisions of this section from any other nonprevailing
party.
(5) In any appeal from the award or denial of a prevailing
party fee under subsection (2) of this section, the court
reviewing the award may not modify the decision of the court in
making or denying an award, or the decision of the court as to
the amount of the award, except upon a finding of an abuse of
discretion.
(6) The prevailing party fees provided for in this section may
not be awarded in any class action proceeding under ORCP 32.
(7) Mandatory arbitration under ORS 36.400 to 36.425 does not
constitute a trial of an issue of law or fact for the purposes of
this section. + }
SECTION 8. ORS 46.475 is amended to read:
46.475. (1) Upon written request, the court may extend to the
parties additional time within which to make formal appearances
required in the small claims department.
(2) If the defendant fails to pay the claim, demand a hearing,
or demand a jury trial, upon written request from the plaintiff
the clerk shall enter a judgment against the defendant for the
relief claimed plus the amount of the small claims filing fees
and service expenses paid by the plaintiff and the prevailing
party fee provided by ORS 20.190 { - (3) - } { + (1)(c) + }.
(3) If the plaintiff fails within the time provided to file a
formal complaint pursuant to ORS 46.465 (3), the clerk shall:
(a) Dismiss the case without prejudice; and
(b) If the defendant applies therefor in writing to the clerk
not later than 30 days after the expiration of the time provided
for the plaintiff to file a formal complaint, refund to the
defendant the amount of the jury trial fee paid by the defendant
under ORS 46.455 (2)(c).
(4) If the defendant appears at the time set for hearing but no
appearance is made by the plaintiff, the claim shall be dismissed
with prejudice. If neither party appears, the claim shall be
dismissed without prejudice.
(5) Upon good cause shown within 60 days, the court may set
aside a default judgment or dismissal and reset the claim for
hearing.
SECTION 9. ORS 46.485 is amended to read:
46.485. (1) In addition to other award, the prevailing party
shall be entitled to a judgment for the small claims filing fees
and service expenses paid by the party and the prevailing party
fee provided for in ORS 20.190 { - (3) - } { + (1)(c) + }.
The award shall be paid or the property delivered upon such terms
and conditions as the judge may prescribe.
(2) The court may allow to the defendant a set-off not to
exceed the amount of plaintiff's claim, but in such case the
court shall cause to be entered in the record the amount of the
set-off allowed.
(3) No attachment shall issue on any cause in the small claims
department.
(4) A judgment in the small claims department is conclusive
upon the parties and no appeal may be taken from the judgment.
(5) The clerk of the district court shall keep a record of all
actions, proceedings and judgments in the small claims
department.
(6) A judgment in the small claims department is a judgment of
the district court. The clerk shall enter such judgment in the
register of the district court. Money judgments shall be subject
to ORCP 70 A(2) and ORCP 70 B. Execution and other process on
execution provided by law may issue on judgments in the small
claims department as in other cases in the district court.
{ +
MANDATORY ARBITRATION + }
SECTION 10. ORS 36.400 is amended to read:
36.400. (1) A mandatory arbitration program is established in
{ - the following courts: - }
{ - (a) In - } the circuit court of { - any - } { +
each + } judicial district { + and in each district court + }
{ - that contains a county with a population of 75,000 or more
according to the latest federal decennial census - } .
{ - (b) In the district court for a county or counties if any
of the counties served by the district court has a population of
75,000 or more according to the latest federal decennial
census. - }
{ - (2) If an arbitration program is not required under
subsection (1) of this section, an arbitration program under ORS
36.400 to 36.425 for civil actions may be established for: - }
{ - (a) The circuit court in a judicial district by an
affirmative vote of a majority of the judges of the court,
subject to the approval of the Chief Justice of the Supreme
Court, or by an order of the Chief Justice. - }
{ - (b) The district court for a county or counties by an
affirmative vote of a majority of the judges of the court,
subject to the approval of the Chief Justice of the Supreme
Court, or by an order of the Chief Justice. - }
{ - (3) - } { + (2) + } Rules consistent with ORS 36.400 to
36.425 to govern the operation and procedure of an arbitration
program established under this section { - for a court - } may
be made in the same manner as other rules applicable to the court
{ - pursuant to ORS 1.002 (1), 3.065 (3), 3.220, 46.280 or
46.665 (3). Rules to govern the operation and procedure of a
program made pursuant to ORS 3.065 (3), 3.220, 46.280 or 46.665
(3) - } { + and + } are subject to the approval of the Chief
Justice of the Supreme Court.
{ - (4) An arbitration program established under subsection
(2) of this section may be suspended or terminated by an order of
the Chief Justice of the Supreme Court. A civil action may not be
referred to arbitration under a program while the program is
suspended or after the program is terminated, but an action
referred to arbitration under a program before the program is
suspended or terminated and pending on the effective date of the
suspension or termination shall continue to be governed by the
applicable provisions of ORS 36.400 to 36.425 and rules made
under subsection (3) of this section. - }
{ + (3) Each circuit court shall establish whether
arbitration under ORS 36.400 to 36.425 is required in matters
involving less than $25,000 or in matters involving less than
$50,000. The decision shall be made by an affirmative vote of a
majority of the judges of the circuit court, subject to the
approval of the Chief Justice of the Supreme Court. + }
{ - (5) - } { + (4) + } ORS 36.400 to 36.425 do not apply
to appeals from a county, justice's or municipal court or actions
in the small claims department of a district court.
SECTION 11. ORS 36.405 is amended to read:
36.405. (1) In a civil action in a circuit or district court
{ - having an arbitration program established under ORS
36.400, - } where all parties have appeared, the court shall
refer the action to arbitration under ORS 36.400 to 36.425
if { + either of the following applies + }:
(a) The only relief claimed is recovery of money or damages,
and no party asserts a claim for money or general and special
damages in an amount exceeding { - $25,000 in - } { + the
amount established under ORS 36.400 (3) for + } the circuit
court, or in an amount exceeding $10,000 in the district court,
exclusive of attorney fees, costs and disbursements and interest
on judgment.
(b) The action is a domestic relations suit, as defined in ORS
107.510, in which the only contested issue is the division or
other disposition of property between the parties.
(2) The presiding judge of the court may { + do either of the
following: + }
{ + (a) + } Exempt from arbitration under ORS 36.400 to
36.425 a civil action that otherwise would be referred to
arbitration under
{ - subsection (1) of - } this section { + . + } { - , or
may - }
{ + (b) + } Remove from further arbitration proceedings a
civil action that has been referred to arbitration under
{ - subsection (1) of - } this section, when, in the opinion of
the judge, good cause exists for that exemption or removal.
SECTION 12. ORS 36.410 is amended to read:
36.410. (1) In a civil action in a circuit or district court
{ - having an arbitration program established under ORS
36.400, - } where all parties have appeared and agreed to
arbitration by stipulation, the court shall refer the action to
arbitration under ORS 36.400 to 36.425 if:
(a) The relief claimed is more than or other than recovery of
money or damages.
(b) The action is in the circuit court, the only relief claimed
is recovery of money or damages and a party asserts a claim for
money or general and special damages in an amount exceeding
{ - $25,000 - } { + the amount established under ORS 36.400
(3) + }, exclusive of attorney fees, costs and disbursements and
interest on judgment.
(2) If a civil action is referred to arbitration under
{ - subsection (1) of - } this section, the arbitrator may
grant any relief that could have been granted if the action were
determined by a judge of the court.
SECTION 13. ORS 36.415 is amended to read:
36.415. { + (1) + } In a civil action in a circuit court
{ - having an arbitration program established under ORS
36.400, - } where all parties have appeared, where the only
relief claimed is recovery of money or damages, where a party
asserts a claim for money or general and special damages in an
amount exceeding { - $25,000 - } { + the amount established
under ORS 36.400 (3) + }, exclusive of attorney fees, costs and
disbursements and interest on judgment, and where all parties
asserting those claims waive the amounts of those claims that
exceed { - $25,000 - } { + the amount established under ORS
36.400 (3) + }, the court shall refer the action to arbitration
under ORS 36.400 to 36.425. A waiver of an amount of a claim
under this section shall be for the purpose of arbitration under
ORS 36.400 to 36.425 only and shall not restrict assertion of a
larger claim in a trial de novo under ORS 36.425.
{ + (2) In a civil action in a circuit court where all
parties have appeared, where the only relief claimed is recovery
of money or damages and where a party asserts a claim for money
or general and special damages in an amount exceeding the amount
established under ORS 36.400 (3), exclusive of attorney fees,
costs and disbursements and interest on judgment, any party
against whom the claim is made may file a motion with the court
requesting that the matter be referred to arbitration. After
hearing upon the motion, the court shall refer the matter to
arbitration under ORS 36.400 to 36.425 if the defendant
establishes by affidavits and other documentation that no
objectively reasonable juror could return a verdict in favor of
the claimant in excess of the amount established under ORS 36.400
(3), exclusive of attorney fees, costs and disbursements and
interest on judgment. + }
SECTION 14. ORS 36.425 is amended to read:
36.425. (1) At the conclusion of arbitration under ORS 36.400
to 36.425 of a civil action, the arbitrator shall file the
decision and award with the clerk of the court that referred the
action to arbitration, together with proof of service of a copy
of the decision and award upon each party.
(2)(a) Within 20 days after the filing of a decision and award
with the clerk of the court under subsection (1) of this section,
a party against whom relief is granted by the decision and award
or a party whose claim for relief was greater than the relief
granted to the party by the decision and award, but no other
party, may file with the clerk a written notice of appeal and
request for a trial de novo of the action in the court on all
issues of law and fact. After the filing of the written notice a
trial de novo of the action shall be held. If the action is
triable by right to a jury and a jury is demanded by a party
having the right of trial by jury, the trial de novo shall
include a jury.
(b) If a party files a written notice under paragraph (a) of
this subsection, a trial fee or jury trial fee, as applicable,
shall be collected as provided in ORS 21.270 or 46.221.
(c) A party filing a written notice under paragraph (a) of this
subsection shall deposit with the clerk of the court the sum of
$150. If the position under the arbitration decision and award of
the party filing the written notice is not improved as a result
of a judgment in the action on the trial de novo, the clerk shall
dispose of the sum deposited in the same manner as a fee
collected by the clerk. If the position of the party is improved
as a result of a judgment, the clerk shall return the sum
deposited to the party. If the court finds that the party filing
the written notice is then unable to pay all or any part of the
sum to be deposited, the court may waive in whole or in part,
defer in whole or in part, or both, the sum. If the sum or any
part thereof is so deferred and the position of the party is not
improved as a result of a judgment, the deferred amount shall be
paid by the party according to the terms of the deferral.
{ - (d) Notwithstanding any other provision of law or the
Oregon Rules of Civil Procedure, a party filing a written notice
under paragraph (a) of this subsection whose position under the
arbitration decision and award is not improved as a result of a
judgment in the action on the trial de novo shall not be entitled
to attorney fees or costs and disbursements, and shall be taxed
the costs and disbursements of the other parties to the action on
the trial de novo, including any expert witness fees and
deposition expenses incurred after the arbitration by other
parties to the action on the trial de novo. - }
(3) If a written notice is not filed under subsection (2)(a) of
this section within the 20 days prescribed, the clerk of the
court shall enter the arbitration decision and award as a final
judgment of the court, which shall have the same force and effect
as a final judgment of the court in the civil action and may not
be appealed.
{ + (4) Notwithstanding any other provision of law or the
Oregon Rules of Civil Procedure:
(a) If a party requests a trial de novo under the provisions of
this section, the action is subject to arbitration under the
provisions of ORS 36.405 (1)(a), the party is entitled to
attorney fees by law or contract, and the position of the party
is not improved after judgment on the trial de novo, the party
shall not be entitled to an award of attorney fees or costs and
disbursements, and shall be taxed the reasonable attorney fees
and costs and disbursements of the other parties to the action on
the trial de novo, including reasonable and necessary expert
witness fees and deposition expenses, whether incurred by the
other parties before or after the commencement of the
arbitration.
(b) If a party requests a trial de novo under the provisions of
this section, the action is subject to arbitration under ORS
36.405 (1)(a), the party is not entitled to attorney fees by law
or contract, and the position of the party is not improved after
judgment on the trial de novo, the party shall be taxed the
reasonable attorney fees and costs and disbursements of the other
parties to the action on the trial de novo, including reasonable
and necessary expert witness fees and deposition expenses
incurred by the other parties after the filing of the decision
and award of the arbitrator.
(c) If a party requests a trial de novo under the provisions of
this section, the action is subject to arbitration under ORS
36.405 (1)(b), and the position of the party is not improved
after judgment on the trial de novo, the party shall not be
entitled to an award of attorney fees or costs and disbursements,
and shall be taxed the costs and disbursements, including
reasonable and necessary expert witness fees and deposition
expenses incurred by the other parties after the filing of the
decision and award of the arbitrator.
(5) The court shall award at least $500 in attorney fees to
each party who is represented by an attorney in a proceeding
subject to subsection (4)(b) of this subsection, and may award
additional reasonable attorney fees not to exceed the following
amounts:
(a) Twenty percent of the judgment, if the defendant requests
the trial de novo but the position of the defendant is not
improved after the trial de novo; or
(b) Ten percent of the amount claimed in the complaint, if the
plaintiff requests the trial de novo but the position of the
plaintiff is not improved after the trial de novo.
(6) Within seven days after the filing of a decision and award
under subsection (1) of this section, a party may file with the
court and serve on the other parties to the arbitration written
exceptions directed solely to the award or denial of attorney
fees or costs. Exceptions under this subsection may be directed
to the legal grounds for an award or denial of attorney fees or
costs, or to the amount of the award. Any party opposing the
exceptions must file a written response with the court and serve
a copy of the response on the party filing the exceptions. Filing
and service of the response must be made within seven days after
the service of the exceptions on the responding party. A judge of
the court shall decide the issue and enter a decision on the
award of attorney fees and costs. If the judge fails to enter a
decision on the award within 20 days after the filing of the
exceptions, the award of attorney fees and costs shall be
considered affirmed. The filing of exceptions under this
subsection does not constitute an appeal under subsection (2) of
this section and does not affect the finality of the award in any
way other than as specifically provided in this subsection. + }
{ +
SMALL CLAIMS PROCEEDINGS + }
SECTION 15. ORS 46.465 is amended to read:
46.465. (1) If the defendant demands a hearing in the small
claims department, under the direction of the court the clerk
shall fix a day and time for the hearing and shall mail to the
parties a notice of the hearing time in the form prescribed by
the court, instructing them to bring witnesses, documents and
other evidence pertinent to the controversy.
(2) If the defendant asserts a counterclaim, the notice of the
hearing time shall contain a copy of the counterclaim.
(3) If the defendant claims the right to a jury trial, the
clerk shall notify the plaintiff to file a formal complaint
within 20 days following the mailing of such notice. The notice
shall instruct the plaintiff to serve a summons and copy of the
complaint by mail on the defendant at the designated address of
the defendant. Proof of service of the summons and complaint copy
may be made by certificate of the plaintiff or plaintiff's
attorney attached to the complaint prior to its filing. The
plaintiff's claim in such formal complaint is not limited to the
amount stated in the claim filed in the small claims department
but it must involve the same controversy. The defendant shall
have 10 days in which to move, plead or otherwise appear
following the day on which the summons and copy of the complaint
would be delivered to the defendant in due course of mail.
Thereafter, the cause shall proceed as other causes in the
district court, and costs and disbursements shall be allowed and
taxed and fees not previously paid shall be charged and collected
as provided in ORS 46.210 and 46.221 for other cases tried in
district court, except that the appearance fee for plaintiff
shall be an amount equal to the difference between the fee paid
by the plaintiff as required by ORS 46.221 (1)(f) and the fee
required of a plaintiff by ORS 46.221 (1)(a).
{ + (4) If the defendant claims the right to a jury trial and
does not prevail in the action, the court shall award to the
plaintiff reasonable attorney fees incurred by the plaintiff in
the action. Unless attorney fees are otherwise provided for in
the action by contract or by statutory provision, attorney fees
awarded under this subsection may not exceed $2,500. + }
{ +
CASE ASSESSMENT PROGRAM + }
SECTION 16. { + (1) The Chief Justice of the Supreme Court
shall study and develop a Case Assessment Program for the courts
of this state. The program shall be designed to encourage parties
to pursue the most appropriate dispute resolution venue for the
parties. The program shall also be designed to identify and
discourage meritless actions. The Chief Justice may establish
committees to assist in the development of the program, and may
appoint judges, attorneys, legislators and private citizens to
those committees for the purpose of acquiring the widest range of
experience in developing the program.
(2) The Chief Justice shall consider the following possible
provisions for a Case Assessment Program:
(a) Ordering case evaluation in all civil proceedings,
requiring evaluation to be performed within 150 days after the
filing of a complaint and allowing parties to voluntarily agree
to case evaluation before the filing of a complaint.
(b) Giving defendants an extension on the filing of a
responsive pleading until after case evaluation occurs and
allowing plaintiffs to file amended complaints or to dismiss the
action at any time without sanction.
(c) Requiring all parties to provide full discovery of
documents and other evidence to allow accurate evaluation of the
case and subjecting parties who fail to provide discovery as
required by the program to sanctions as provided for failure to
produce discovery under the Oregon Rules of Civil Procedure.
(d) Requiring utilization of damage studies and such other
research as may be helpful in evaluating the potential recovery
under a claim.
(3) The Case Assessment Program developed by the Chief Justice
under this section shall utilize the services of case evaluators,
who may be assigned either by agreement of the parties or upon
the order of the court. Case evaluators may be specially employed
or may be judges or arbitrators of the court. The program shall
allow each side the opportunity to peremptorily challenge at
least the first case evaluator assigned to the matter. The fee of
any case evaluator who is not a court employee shall be borne
equally by the parties.
(4) The Case Assessment Program developed by the Chief Justice
under the provisions of this section shall require the case
evaluator to refer disputes to appropriate dispute resolution
programs, including but not limited to mediation and arbitration
programs. If the matter cannot be resolved by dispute resolution,
the case evaluator shall make a determination that the case is
one of the following:
(a) Clearly frivolous.
(b) Clearly meritorious.
(c) Neither clearly frivolous nor clearly meritorious.
(5) The Case Assessment Program developed by the Chief Justice
under the provisions of this section shall provide that any
plaintiff who proceeds with a case after the case has been
determined to be clearly frivolous, or any defendant who proceeds
with a case after the case has been determined to be clearly
meritorious, shall be subject to sanctions if the party does not
prevail in the action.
(6) The Chief Justice shall cause legislation to be prepared to
implement the Case Assessment Program developed under the
provisions of this section. The legislation shall designate
judicial districts or counties in which a pilot program may be
implemented for purposes of evaluating the program. The Chief
Justice shall submit the legislation to the Sixty-ninth
Legislative Assembly for consideration. + }
{ +
RECIPROCITY OF ATTORNEY FEE AWARDS + }
SECTION 17. ORS 20.090 is amended to read:
20.090. { - (1) Except as otherwise provided in subsection
(2) of this section, - } In any action against the maker of any
check, draft or order for the payment of money which has been
dishonored for lack of funds or credit to pay the same or because
payment has been stopped, the court { - shall allow - }
{ + may award + } a reasonable attorney fee at trial and on
appeal to the prevailing party, in addition to disbursements.
{ - (2) If the plaintiff prevails in an action described in
subsection (1) of this section, the court shall not allow a
reasonable attorney fee to the plaintiff as provided in
subsection (1) of this section unless the court finds that the
plaintiff made written demand of the defendant for the payment of
such claim not less than 10 days before the date of the
commencement of the action and that the defendant failed to
tender to the plaintiff, prior to the commencement of the action,
an amount of money not less than the damages awarded to the
plaintiff. - }
SECTION 18. ORS 20.094 is amended to read:
20.094. In any action or suit on a debt { + in which the
defendant asserts a discharge in bankruptcy as a defense + }, the
court { - shall - } { + may + } award { - the debtor who is
a defendant - } a reasonable attorney fee at trial and on
appeal { + to the prevailing party + } { - , in addition to
disbursements, if the defendant prevails on the grounds of
discharge in bankruptcy - } .
SECTION 19. ORS 20.096 is amended to read:
20.096. (1) In any action or suit on a contract, where such
contract specifically provides that attorney fees and costs
incurred to enforce the provisions of the contract shall be
awarded to one of the parties, the prevailing party, whether that
party is the party specified in the contract or not, at trial or
on appeal, shall be entitled to reasonable attorney fees in
addition to costs and disbursements.
(2) Attorney fees provided for in a contract described in
subsection (1) of this section shall not be subject to waiver by
the parties to any such contract which is entered into after
September 9, 1971. Any provision in such a contract which
provides for a waiver of attorney fees is void.
{ - (3) If the plaintiff prevails in any action or suit on a
contract which expressly provides for the award of attorney fees
where the amount of principal together with interest due on such
contract at the time of commencement of the proceedings does not
exceed $200, there shall be taxed and allowed to the plaintiff a
reasonable amount to be fixed by the court as attorney fees, if
the court finds that written demand for the payment of
plaintiff's claim was made on the defendant not less than 10 days
before the commencement of the action. However, no attorney fees
shall be allowed to the plaintiff if the court finds that the
defendant tendered to the plaintiff, subsequent to such demand
but prior to the commencement of the action or suit, an amount
not less than the damages awarded to the plaintiff. - }
{ - (4) In the event that a default judgment is taken against
the defendant in an action or suit described in subsection (3) of
this section, the amount of attorney fees awarded shall be 25
percent of the amount of the principal together with interest
due, exclusive of any other fees or costs authorized by law. - }
{ - (5) - } { + (3) + } Except as provided in ORS 20.015,
as used in this section and ORS 20.097 'prevailing party' means
the party in whose favor final judgment or decree is rendered.
{ - (6) - } { + (4) + } As used in this section and ORS
20.097 'contract ' includes any instrument or document evidencing
a debt.
SECTION 20. ORS 20.107 is amended to read:
20.107. (1) In any civil judicial proceeding, including
judicial review of an administrative proceeding { + based on a
claim of unlawful discrimination + }, { - a complaining party
who prevails in a final binding judgment on a claim of illegal
discrimination in violation of state constitutional provision,
statute or administrative rule shall be entitled to recover costs
and disbursements, including - } { + the court shall award to
the prevailing plaintiff + }attorney and expert witness fees
reasonably and necessarily incurred in connection with the
discrimination claim, at the trial court or agency level and on
appeal. { + The court may award reasonable attorney fees and
expert witness fees incurred by a defendant who prevails in the
action if the court determines that the plaintiff had no
objectively reasonable basis for asserting a claim or no
reasonable basis for appealing an adverse decision of a trial
court or agency. + }
(2) In making an award under this section, the court shall
calculate attorney and expert witness fees on the basis of a
reasonable hourly rate at the time the award is made, multiplied
by the amount of time actually and reasonably spent in connection
with the discrimination claim.
{ - (3) In making an award under this section, if a
proceeding involved more than two parties, the court shall
determine which party or parties were responsible for the illegal
discrimination and shall order that the award be paid by the
responsible party or parties in proportion to their
responsibility. Nothing in this subsection precludes a court from
making an award under this section against parties who were
acting pursuant to a statute that is held by the court to be
unconstitutional in whole or in part. - }
{ - (4) - } { + (3) + } When an award under this section is
made against a state agency or an officer or employee of a state
agency, the award shall be paid by the agency directly from funds
available to it.
{ - (5) Nothing in this section limits the authority of a
court to award costs and disbursements, including attorney and
expert witness fees, under any other provision of law. - }
{ - (6) Any state agency, officer or employee is subject to
subsection (3) of this section. However, a local government,
local official or a private party may depend on a good faith
reliance defense on a state statute found unconstitutional and is
not liable for paying a prevailing party's attorney fees and
costs. - }
{ - (7) - } { + (4) + } As used in this section, 'unlawful
discrimination' means discrimination based upon personal
characteristics including, but not limited to, gender, national
origin, age, marital status, race, religion or alienage.
SECTION 21. ORS 30.075 is amended to read:
30.075. (1) Causes of action arising out of injuries to a
person, caused by the wrongful act or omission of another, shall
not abate upon the death of the injured person, and the personal
representatives of the decedent may maintain an action against
the wrongdoer, if the decedent might have maintained an action,
had the decedent lived, against the wrongdoer for an injury done
by the same act or omission. The action shall be commenced within
the limitations established in ORS 12.110 by the injured person
and continued by the personal representatives under this section,
or within three years by the personal representatives if not
commenced prior to death.
(2) In any such action { - if the plaintiff prevails, there
shall be taxed and allowed to the plaintiff - } { + the court
may award to the prevailing party + }, at trial and on appeal, a
reasonable amount to be fixed by the court as attorney
fees { + . + } { - for the prosecution of the action, if the
court finds that written demand for the payment of such claim was
made on the defendant either in the form of an action filed or a
letter 10 days before commencement of the action; provided, that
no attorney fees shall be allowed to the plaintiff if the court
finds that the defendant tendered to the plaintiff, at least 20
days before trial in an action that was pending at the death of
the injured party, or otherwise prior to the commencement of the
action, an amount not less than the damages awarded to the
plaintiff. - }
SECTION 22. ORS 30.184 is amended to read:
30.184. In any civil action brought under this section, the
utility shall recover from the defendant the greater of actual
damages, if any, or $100. Actual damages include the costs
incurred on account of the bypassing, tampering or unauthorized
reconnection, including but not limited to costs and expenses for
investigation, disconnection, reconnection and service calls. The
utility may recover punitive damages in addition to actual
damages. { - The utility shall also recover the cost of the
suit, - } { + The court may award + }reasonable attorney fees
and expert witness fees { + to the prevailing party in an action
under this section + }.
SECTION 23. ORS 30.190 is amended to read:
30.190. (1) Irrespective of any criminal prosecution or the
result thereof, any person injured by a violation of ORS 166.155
or 166.165 shall have a civil action to secure an injunction,
damages or other appropriate relief against any and all persons
whose actions are unlawful under ORS 166.155 and 166.165.
(2) Upon prevailing in such action, the plaintiff may recover:
(a) Both special and general damages, including damages for
emotional distress; { + and + }
(b) Punitive damages { + . + } { - ; and - }
{ - (c) Reasonable attorney fees and costs. - }
{ + (3) The court shall award reasonable attorney fees to the
prevailing plaintiff in an action under this section. The court
may award reasonable attorney fees and expert witness fees
incurred by a defendant who prevails in the action if the court
determines that the plaintiff had no objectively reasonable basis
for asserting a claim or no reasonable basis for appealing an
adverse decision of a trial court. + }
{ - (3) - } { + (4) + } The parent, parents or legal
guardian of an unemancipated minor shall be liable for any
judgment recovered against such minor under this section, in an
amount not to exceed $5,000.
SECTION 24. ORS 30.680 is amended to read:
30.680. All persons against whom any distinction,
discrimination or restriction on account of race, religion, sex,
marital status, color or national origin has been made by any
place of public accommodation, as defined in ORS 30.675, by any
person acting on behalf of such place or by any person aiding or
abetting such place or person in violation of ORS 30.685 shall
have a cause of action to recover compensatory and punitive
damages from the operator or manager of such place or the
employee or person acting on behalf of such place or the aider or
abettor of such place or person. In the action the operator or
manager of such place, the employee or person acting on behalf of
such place or the aider or abettor of such place or person shall
be jointly and severally liable. { - Any person recovering
damages under this section shall be entitled to reasonable
attorney fees at trial and on appeal as determined by the court
in addition to costs and necessary disbursements. - } { + The
court shall award reasonable attorney fees to the prevailing
party in an action under this section. The court may award
reasonable attorney fees and expert witness fees incurred by a
defendant who prevails in the action if the court determines that
the plaintiff had no objectively reasonable basis for asserting a
claim or no reasonable basis for appealing an adverse decision of
a trial court. + }
SECTION 25. ORS 30.820 is amended to read:
30.820. In addition to and not in lieu of the penalty provided
in ORS 165.825 (2), any person who buys a horse sold in violation
of ORS 165.825 (1) may bring an action against the seller for any
damages the buyer incurs as a result of the sale.
{ - If the buyer prevails in any such action, there shall be
taxed and allowed to the buyer, at trial and on appeal, a
reasonable amount to be fixed by the court as attorney fees. - }
{ + The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 26. ORS 30.822 is amended to read:
30.822. (1) In addition to and not in lieu of any other penalty
provided by state law, the owner of a search and rescue animal or
a therapy animal, as defined in ORS 167.352, may bring an action
for economic and noneconomic damages against any person who
steals or, without provocation, attacks the search and rescue
animal or therapy animal. The owner may also bring an action for
such damages against the owner of any animal that, without
provocation, attacks a search and rescue animal or therapy
animal. The action authorized by this subsection may be brought
by the owner even if the search and rescue or therapy animal was
in the custody or under the supervision of another person when
the theft or attack occurred.
(2) If the theft of or unprovoked attack on a search and rescue
animal or therapy animal described in subsection (1) of this
section results in the death of the animal or the animal is not
returned or if injuries sustained in the theft or attack prevent
the animal from returning to service as a search and rescue
animal or therapy animal, the measure of economic damages shall
include, but need not be limited to, the replacement value of an
equally trained animal, without any differentiation for the age
or the experience of the animal. { - In addition, the owner may
recover any other costs and expenses, including, but not limited
to, attorney fees, incurred as a result of the theft of or injury
to the animal. - }
(3) If the theft of or unprovoked attack on a search and rescue
animal or therapy animal described in subsection (1) of this
section results in injuries from which the animal recovers and
returns to service, or if the animal is stolen and is recovered
and returns to service, the measure of economic damages shall
include, but need not be limited to, the costs of temporary
replacement services, veterinary medical expenses and any other
costs and expenses { - , including attorney fees, - } incurred
by the owner as a result of the theft of or injury to the animal.
(4) No cause of action arises under this section if the owner
or the person having custody or supervision of the search and
rescue animal or therapy animal was committing a criminal or
civil trespass at the time of the attack on the animal.
{ + (5) The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 27. ORS 30.825 is amended to read:
30.825. Any person who is damaged by an act prohibited in ORS
164.877 (1) to (3) may bring a civil action to recover damages
sustained { - , and shall be entitled to reasonable attorney
fees - } . A party seeking civil damages under this section may
recover upon proof by a preponderance of the evidence of a
violation of the provisions of ORS 164.877 (1) to (3). { + The
court may award reasonable attorney fees to the prevailing party
in an action under this section. + }
SECTION 28. ORS 30.860 is amended to read:
30.860. (1) No person or governmental entity shall discriminate
against, boycott, blacklist, refuse to buy from, sell to or trade
with any person because of foreign government imposed or
sanctioned discrimination based upon the national origin, race or
religion of such person or of such person's partners, members,
directors, stockholders, agents, employees, business associates,
suppliers or customers.
(2) Any person directly injured in business or property by a
violation of subsection (1) of this section may sue whoever
knowingly practices, or conspires to practice, activities
prohibited by subsection (1) of this section, and shall recover
threefold the damages sustained { - , the costs of suit and
reasonable attorney fees at trial and on appeal - } . { + The
court shall award reasonable attorney fees to the prevailing
plaintiff in an action under this section. The court may award
reasonable attorney fees and expert witness fees incurred by a
defendant who prevails in the action if the court determines that
the plaintiff had no objectively reasonable basis for asserting a
claim or no objectively reasonable basis for appealing an adverse
decision of a trial court. + }
SECTION 29. ORS 30.862 is amended to read:
30.862. (1) Conduct constituting a violation of ORS 30.862 and
162.117 to 162.121 shall give rise to a civil cause of action by
the state. { - In addition to any other damages and remedies,
the state shall be entitled to recover attorney fees and costs of
investigation and litigation, reasonably incurred. Amounts that
may be recovered include costs and expenses of state and local
governments incurred in connection with the investigation or
litigation. - } { + The court may award reasonable attorney
fees to the prevailing party in an action under this section. + }
(2) The application of one civil remedy under any provision of
ORS 30.862 and 162.117 to 162.121 shall not preclude the
application of any other remedy, civil or criminal, under ORS
30.862 and 162.117 to 162.121 or under any other provision of
law. Civil remedies under ORS 30.862 and 162.117 to 162.121 are
supplemental and not mutually exclusive.
SECTION 30. ORS 30.864 is amended to read:
30.864. (1) Any person claiming to be aggrieved by the reckless
disclosure of personally identifiable information from a
student's education records as prohibited by rules of the State
Board of Education or the State Board of Higher Education may
file a civil action in circuit court for equitable relief or,
subject to the terms and conditions of ORS 30.265 to 30.300, for
damages, or both. The court may order such other relief as may be
appropriate.
(2) The action authorized by this section shall be filed within
two years of the alleged unlawful disclosure.
(3) In an action brought under this section, the court may
allow the prevailing { - plaintiff - } { + party + } costs,
disbursements and reasonable attorney fees. { - If the
defendant prevails, the court may award costs, disbursements and
reasonable attorney fees if it finds the action to be
frivolous. - }
SECTION 31. ORS 30.960 is amended to read:
30.960. (1) Notwithstanding ORS 30.950 and 471.130, no
licensee, permittee or social host shall be liable to third
persons injured by or through persons not having reached 21 years
of age who obtained alcoholic beverages from the licensee,
permittee or social host unless it is demonstrated that a
reasonable person would have determined that identification
should have been requested or that the identification exhibited
was altered or did not accurately describe the person to whom the
alcoholic liquor was sold or served.
(2) A person who is under 21 but at least 18 years of age who
through misrepresentation of age causes an Oregon Liquor Control
Commission licensee to be fined or have a license suspended or
revoked shall be civilly liable for damages sustained by the
licensee { - and for costs, disbursements and attorney fees at
trial and on appeal - } . { + The court may award reasonable
attorney fees to the prevailing party in an action under this
subsection. + }
SECTION 32. ORS 59.115 is amended to read:
59.115. (1) A person who sells a security is liable as provided
in subsection (2) of this section to a purchaser of the security
if the person:
(a) Sells a security in violation of the Oregon Securities Law
or of any condition, limitation or restriction imposed upon a
registration or license under the Oregon Securities Law; or
(b) Sells a security by means of an untrue statement of a
material fact or an omission to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they are made, not misleading (the
buyer not knowing of the untruth or omission), and who does not
sustain the burden of proof that the person did not know, and in
the exercise of reasonable care could not have known, of the
untruth or omission.
(2) The purchaser may recover { - , in addition to costs and
reasonable attorney fees at trial and on appeal - } :
(a) Upon tender of the security, the consideration paid for the
security, and interest from the date of payment equal to the
greater of the rate of interest specified in ORS 82.010 for
judgments and decrees for the payment of money or the rate
provided in the security if the security is an interest-bearing
obligation, less any amount received on the security; or
(b) If the purchaser no longer owns the security, damages in
the amount that would be recoverable upon a tender, less the
value of the security when the purchaser disposed of it and less
interest on such value at the rate of interest specified in ORS
82.010 for judgments and decrees for the payment of money from
the date of disposition.
(3) Every person who directly or indirectly controls a seller
liable under subsection (1) of this section, every partner,
officer, or director of such seller, every person occupying a
similar status or performing similar functions, and every person
who participates or materially aids in the sale is also liable
jointly and severally with and to the same extent as the seller,
unless the nonseller sustains the burden of proof that the
nonseller did not know, and, in the exercise of reasonable care,
could not have known, of the existence of the facts on which the
liability is based. Any person held liable under this section
shall be entitled to contribution from those jointly and
severally liable with that person.
(4) Notwithstanding the provisions of subsection (3) of this
section, a person whose sole function in connection with the sale
of a security is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is
liable only if the person participates or materially aids in the
sale and the purchaser sustains the burden of proof that the
person knew of the existence of the facts on which liability is
based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(5) Any tender specified in this section may be made at any
time before entry of judgment.
(6) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the sale. An action under this section for a violation of
subsection (1)(b) of this section or ORS 59.135 may be commenced
within three years after the sale or two years after the person
bringing the action discovered or should have discovered the
facts on which the action is based, whichever is later. Failure
to commence an action on a timely basis is an affirmative
defense.
(7) No action may be commenced under this section solely
because an offer was made prior to registration of the
securities.
(8) Any person having a right of action against a
broker-dealer, investment adviser or against a salesperson acting
within the course and scope or apparent course and scope of
authority of the salesperson, under this section shall have a
right of action under the bond or irrevocable letter of credit
provided in ORS 59.175.
(9) Subsection (4) of this section shall not limit the
liability of any person:
(a) For conduct other than in the circumstances described in
subsection (4) of this section; or
(b) Under any other law, including any other provisions of the
Oregon Securities Law.
{ + (10) The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 33. ORS 59.127 is amended to read:
59.127. (1) A person who purchases a security is liable as
provided in subsection (2) of this section to the person selling
the security, if the person:
(a) Purchases a security in violation of any condition,
limitation or restriction imposed upon a registration under the
Oregon Securities Law; or
(b) Purchases a security by means of an untrue statement of a
material fact or an omission to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they were made, not misleading (the
seller not knowing of the untruth or omission), and if the person
does not sustain the burden of proof that the person did not
know, and in the exercise of reasonable care could not have
known, of the untruth or omission.
(2) The seller may recover { - , in addition to costs and
reasonable attorney fees at trial and on appeal - } :
(a) Upon a tender of the consideration paid for the security,
the security plus interest from the date of purchase equal to the
greater of the rate of interest specified in ORS 82.010 for
judgments and decrees for the payment of money, or the rate
provided in the security if the security is an interest-bearing
obligation;
(b) Damages in the amount that would be recoverable upon a
tender, plus any amount received on the security, less the
consideration paid for the security; or
(c) If the purchaser no longer owns the security, damages equal
to the value of the security when the purchaser disposed of it
plus interest on such value at the rate of interest specified in
ORS 82.010 for judgments and decrees for the payment of money
from the date of disposition, less the consideration paid for the
security.
(3) Every person who directly or indirectly controls a
purchaser liable under subsection (1) of this section, every
partner, officer, or director of such purchaser, every person
occupying a similar status or performing similar functions, and
every person who participates or materially aids in the purchase
is also liable jointly and severally with and to the same extent
as the purchaser, unless the nonpurchaser sustains the burden of
proof that the nonpurchaser did not know, and, in the exercise of
reasonable care, could not have known, of the existence of the
facts on which the liability is based. Any person held liable
under this section shall be entitled to contribution from those
jointly and severally liable with the person.
(4) Notwithstanding the provisions of subsection (3) of this
section, a person whose sole function in connection with the
purchase of a security is to provide ministerial functions of
escrow, custody or deposit services in accordance with applicable
law is liable only if the person participates or materially aids
in the purchase and the seller sustains the burden of proof that
the person knew of the existence of the facts on which liability
is based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(5) Any tender specified in this section may be made at any
time before entry of judgment.
(6) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the purchase. An action under this section for a violation
of subsection (1)(b) of this section or ORS 59.135 may be
commenced within three years after the purchase or two years
after the person bringing the action discovered or should have
discovered the facts on which the action is based, whichever is
later. Failure to commence an action on a timely basis is an
affirmative defense.
(7) Any person having a right of action against a
broker-dealer, investment adviser or against a salesperson acting
within the course and scope or apparent course and scope of the
authority of the salesperson, under this section shall have a
right of action under the bond or irrevocable letter of credit
provided in ORS 59.175.
(8) Subsection (4) of this section shall not limit the
liability of any persons:
(a) For conduct other than in the circumstances described in
subsection (4) of this section; or
(b) Under any other law, including any other provisions of the
Oregon Securities Law.
{ + (9) The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 34. ORS 59.255 is amended to read:
59.255. (1) Whenever it appears to the Director of the
Department of Consumer and Business Services that a person has
engaged or is about to engage in an act or practice constituting
a violation of any provision of the Oregon Securities Law or any
rule or order of the director, the director may bring suit in the
name and on behalf of the State of Oregon in the circuit court of
any county of this state to enjoin the acts or practices and to
enforce compliance with the Oregon Securities Law or such rule or
order. Upon a proper showing, a permanent or temporary
injunction, restraining order or writ of mandamus shall be
granted. The court may fine the person against whom the order is
entered not more than $5,000 for each violation, which shall be
entered as a judgment and paid to the General Fund of the State
Treasury. Each violation is a separate offense. In the case of a
continuing violation, each day's continuance is a separate
violation, but the maximum penalty for any continuing violation
shall not exceed $20,000. If the court finds that the defendant
has violated any provision of the Oregon Securities Law or any
such rule or order, the court may appoint a receiver, who may be
the director, for the defendant or the defendant's assets.
{ - The court may not require the director to post a bond. If
the director prevails, the director shall be entitled to costs,
and reasonable attorney fees at trial and on appeal to be fixed
by the court. - } { + The court may award reasonable attorney
fees to the prevailing party in an action under this section. + }
(2) The director may include in any action authorized by
subsection (1) of this section:
(a) A claim for restitution or damages under ORS 59.115 or
59.127, on behalf of the persons injured by the act or practice
constituting the subject matter of the action. The court shall
have jurisdiction to award appropriate relief to such persons, if
the court finds that enforcement of the rights of such persons by
private civil action, whether by class action or otherwise, would
be so burdensome or expensive as to be impractical; or
(b) A claim for disgorgement of illegal gains or profits
derived. Any recovery under this paragraph shall be turned over
to the General Fund of the State Treasury unless the court
requires other disposition.
SECTION 35. ORS 59.670 is amended to read:
59.670. No person shall sell or offer for sale, or otherwise
dispose of for value, any share granting or purporting to grant
to the purchaser or holder, or to the heirs, children,
dependents, members of family, administrators, survivors,
executors or assigns of the purchaser or holder, any right to
funeral or burial services contingent upon the death of the
purchaser, holder, children, dependents, or members of family, at
a price or cost less than the price or cost open to any person
not having such share unless the person selling, offering for
sale, or otherwise disposing of any such share shall first file,
and keep in force, a bond running to the State of Oregon. This
bond shall be in the penal sum of $50,000, with a surety company
licensed to do business in this state as surety. The bond shall
be approved by and filed with the Director of the Department of
Consumer and Business Services and conditioned to indemnify the
purchaser or holder of the share from any loss sustained or
occasioned by any misrepresentation or fraud on the part of the
person selling or offering it for sale, or by the failure of any
such person to comply with the terms and conditions of the share
or any representation made at the time of, or as an inducement
for, its purchase or acquisition. In case the purchaser or holder
of the share sustains damage or loss from any cause specified in
this section, such purchaser or holder or the executors or
administrators of such purchaser or holder shall have a cause of
action against the principal and surety upon the bond for all
damages or loss sustained, together with the costs provided by
law
{ - and, in addition, a reasonable sum as attorney fees at
trial and on appeal to be fixed by the court - } . However, the
recovery against the surety shall not exceed the amount of the
bond. { + The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 36. ORS 59.890 is amended to read:
59.890. (1) Whenever the Director of the Department of Consumer
and Business Services has reasonable cause to believe that a
person has been engaged or is engaging in any violation of any
provision of ORS 59.840 to 59.960 or any rule or order of the
director, the director may bring suit in the name and on behalf
of the State of Oregon in the circuit court of any county of this
state to enjoin the violation and to enforce compliance with any
provision of ORS 59.840 to 59.960 or such rule or order. Upon a
proper showing, a permanent or temporary injunction, restraining
order or writ of mandamus shall be granted. The court may fine
the person against whom the order is entered not more than $5,000
for each violation, which shall be entered as a judgment and paid
to the General Fund of the State Treasury. Each violation is a
separate offense. In the case of a continuing violation, each
day's continuance is a separate violation, but the maximum
penalty for any continuing violation shall not exceed $20,000 for
each offense. If the court finds that the defendant has violated
any provision of ORS 59.840 to 59.960 or any such rule or order,
the court may appoint a receiver, who may be the director, for
the defendant or the defendant's assets. The court may not
require the director to post a bond. { - If the director
prevails, the director shall be entitled to costs and reasonable
attorney fees at trial and on appeal to be fixed by the
court. - } { + The court may award reasonable attorney fees to
the prevailing party in an action under this section. + }
(2) The director may include in any action authorized by
subsection (1) of this section:
(a) A claim for restitution or damages under ORS 59.925 on
behalf of the persons injured by the act or practice constituting
the subject matter of the action. The court shall have
jurisdiction to award appropriate relief to such persons, if the
court finds that enforcement of the rights of such persons by
private civil action, whether by class action or otherwise, would
be so burdensome or expensive as to be impractical; or
(b) A claim for disgorgement of illegal gains or profits
derived. Any recovery under this paragraph shall be turned over
to the General Fund of the State Treasury unless the court
requires other disposition.
SECTION 37. ORS 59.925 is amended to read:
59.925. (1) A mortgage banker or mortgage broker is liable as
provided in subsection (2) of this section to any person who
suffers any ascertainable loss of money or property, real or
personal, if the mortgage banker or mortgage broker:
(a) Transacts business as a mortgage banker or mortgage broker
in violation of any provision of ORS 59.840 to 59.960; or
(b) Transacts business as a mortgage banker or mortgage broker
by means of an untrue statement of a material fact or an omission
to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
are made, not misleading, and who does not sustain the burden of
proof that the person did not know, and in the exercise of
reasonable care could not have known, of the untruth or omission.
(2) The person suffering ascertainable loss may recover all
damages, including direct, indirect or consequential damages
{ - , in addition to costs and reasonable attorney fees at trial
and on appeal - } .
(3) A person whose sole function in connection with a
transaction is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is
liable only if the person participates or materially aids in the
transaction and the plaintiff sustains the burden of proof that
the person knew of the existence of the facts on which liability
is based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(4) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the transaction. An action under this section for a
violation under subsection (1)(b) of this section or ORS 59.930
may be commenced within three years after the transaction or two
years after the person bringing the action discovered or should
have discovered the facts on which the action is based, whichever
is later, but in no event more than five years after the date of
the transaction. Failure to commence an action on a timely basis
is an affirmative defense.
(5) Any person having a right of action against a mortgage
banker or mortgage broker shall under this section have a right
of action under the bond or irrevocable letter of credit provided
in ORS 59.850.
(6) Subsection (3) of this section shall not limit the
liability of any person:
(a) For conduct other than in the circumstances described in
subsection (3) of this section; or
(b) Under any other law.
{ + (7) The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 38. ORS 62.335 is amended to read:
62.335. (1) No action may be instituted or maintained in the
right of any cooperative by a member or shareholder unless the
member or shareholder:
(a) Alleges in the complaint that the member or shareholder was
a member or shareholder of record when any part of the
transaction of which complained took place, or that the
membership or stock thereafter devolved upon the member or
shareholder by operation of law from a member or shareholder at
such time.
(b) Alleges in the complaint with particularity the efforts of
the member or shareholder to secure from the board such action as
desired. The member or shareholder shall further allege that the
member or shareholder has either informed the cooperative or
board in writing of the ultimate facts of each cause of action
against each director or delivered to the cooperative or board a
copy of the complaint proposed to be filed. The member or
shareholder shall state the reasons for failure to obtain such
action or the reasons for not making such effort.
(c) Files a complaint in such action within 20 days after
notification given to the cooperative or board as provided by
paragraph (b) of this subsection.
(2) The action shall not be dismissed or compromised without
the approval of the court.
(3) If anything is recovered or obtained as the result of the
action, whether by means of a compromise and settlement or by a
judgment, the court may { - , out of the proceeds of the action,
award the plaintiff the reasonable expenses of maintaining the
action, including reasonable attorney fees at trial and on
appeal, and may - } direct the plaintiff to account to the
cooperative for the remainder of the proceeds.
(4) In an action brought in the right of a cooperative by fewer
than three percent of the members or by holders of less than
three percent of any class of stock outstanding, the defendants
may require the plaintiff to give security for the reasonable
expenses of defending the action, including attorney fees. The
amount of the security may thereafter be increased or decreased
in the discretion of the court upon showing that the security
provided is or may be inadequate or is excessive.
{ + (5) The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 39. ORS 62.440 is amended to read:
62.440. (1) A cooperative shall keep correct and complete books
and records of account, and shall keep minutes of the proceedings
of its members, board and executive committee. It shall keep at
its principal office records of the names and addresses of all
members and shareholders. At any reasonable time, any member or
shareholder, or the agent or attorney of any member or
shareholder, upon written notice stating the purposes thereof,
may examine for any proper purpose any books or records pertinent
to the purpose specified in the notice and may make extracts
therefrom.
(2) In any action or proceeding to enforce the rights of
members or shareholders provided in this section, { - if the
member or shareholder prevails in the action or proceeding, there
shall be taxed and allowed to such member or shareholder, at
trial and on appeal, a reasonable amount to be fixed by the court
as attorney fees for the prosecution of the action or
proceeding - } { + the court may award reasonable attorney fees
to the prevailing party + }.
SECTION 40. ORS 65.207 is amended to read:
65.207. (1) The circuit court of the county where a
corporation's principal office is located, or, if the principal
office is not in this state, where the registered office of the
corporation is or was last located, may summarily order a meeting
to be held:
(a) On application of any member or other person entitled to
participate in an annual or regular meeting or, in the case of a
public benefit corporation, the Attorney General, if an annual
meeting was not held within the earlier of six months after the
end of the corporation's fiscal year or 15 months after its last
annual meeting;
(b) On application of any member or other person entitled to
participate in a regular meeting or, in the case of a public
benefit corporation, the Attorney General, if a regular meeting
is not held within 40 days after the date it was required to be
held; or
(c) On application of a member who signed a demand for a
special meeting valid under ORS 65.204, a person or persons
entitled to call a special meeting or, in the case of a public
benefit corporation, the Attorney General, if notice of the
special meeting was not given within 30 days after the date the
demand was delivered to the corporation's secretary or the
special meeting was not held in accordance with the notice.
(2) The court may fix the time and place of the meeting,
determine the members entitled to participate in the meeting,
specify a record date for determining members entitled to notice
of and to vote at the meeting, prescribe the form and content of
the meeting notice, fix the quorum required for specific matters
to be considered at the meeting or direct that the votes
represented at the meeting constitute a quorum for action on
those matters, and enter other orders necessary to accomplish the
purpose or purposes of the meeting.
(3) { - If the court orders a meeting, it may also order the
corporation to pay the member's costs, including reasonable
attorney fees, incurred to obtain the order. - } { + The court
may award reasonable attorney fees to the prevailing party in an
action under this section. + }
(4) The request shall be set for hearing at the earliest
possible time and shall take precedence over all matters, except
matters of the same character and hearings on preliminary
injunctions under ORCP 79 B(3). No order shall be issued by the
court under this section without notice to the corporation at
least five days in advance of the time specified for the hearing
unless a different period is fixed by order of the court.
SECTION 41. ORS 65.224 is amended to read:
65.224. (1) A corporation shall prepare an alphabetical list of
the names, addresses and membership dates of all its members. If
there are classes of members, the list must show the address and
number of votes each member is entitled to vote at the meeting.
The corporation shall prepare on a current basis through the time
of the membership meeting a list of members, if any, who are
entitled to vote at the meeting, but are not part of the main
list of members.
(2) The list of members must be available for inspection by any
member for the purpose of communication with other members
concerning the meeting, beginning two business days after notice
of the meeting is given for which the list was prepared and
continuing through the meeting, at the corporation's principal
office or at a reasonable place identified in the meeting notice
in the city or other location where the meeting will be held. A
member, the member's agent or attorney is entitled, on written
demand setting forth a proper purpose, to inspect and, subject to
the requirements of ORS 65.774 and 65.782, to copy the list at a
reasonable time and at the member's expense, during the period it
is available for inspection.
(3) The corporation shall make the list of members available at
the meeting, and any member, the member's agent or attorney is
entitled to inspect the list for any proper purpose at any time
during the meeting or any adjournment.
(4) If the corporation refuses to allow a member, the member's
agent or attorney to inspect the list of members before or at the
meeting or copy the list as permitted by subsection (2) of this
section, on application of the member, the circuit court of the
county where the corporation's principal office, or if the
principal office is not in this state, where its registered
office is or was last located, may enter a temporary restraining
order or preliminary injunction pursuant to ORCP 79 ordering the
inspection or copying at the corporation's expense and may
postpone the meeting for which the list was prepared until the
inspection or copying is complete { - and may order the
corporation to pay the member's costs, including reasonable
attorney fees, incurred to obtain the order - } . { + The court
may award reasonable attorney fees to the prevailing party in an
action under this subsection. + } The party initiating such a
proceeding shall not be required to post an undertaking pursuant
to ORCP 82 A.
(5) Refusal or failure to prepare or make available the
membership list does not affect the validity of action taken at
the meeting.
(6) The articles or bylaws of a religious corporation may limit
or abolish the rights of a member under this section to inspect
and copy any corporate record.
(7) The articles of a public benefit corporation organized
primarily for political or social action, including but not
limited to political or social advocacy, education, litigation or
a combination thereof, may limit or abolish the right of a member
or the members' agent or attorney to inspect or copy the
membership list if the corporation provides a reasonable means to
mail communications to the other members through the corporation
at the expense of the member making the request.
SECTION 42. ORS 65.781 is amended to read:
65.781. (1) If a corporation does not allow a member who
complies with ORS 65.774 (1) to inspect and copy any records
required by ORS 65.774 (1) to be available for inspection, the
circuit court in the county where the corporation's principal
office, or, if none in this state, its registered office, is
located may summarily order inspection and copying of the records
demanded at the corporation's expense upon application of the
member.
(2) If a corporation does not within a reasonable time allow a
member to inspect and copy any other record, the member who
complies with ORS 65.774 (2) and (3) may apply to the circuit
court in the county where the corporation's principal office, or,
if none in this state, its registered office, is located for an
order to permit inspection and copying of the records demanded.
(3) { - If the court orders inspection and copying of the
records demanded, it shall also order the corporation to pay the
member's costs, including reasonable attorney fees, incurred to
obtain the order unless the corporation proves that it refused
inspection in good faith because it had a reasonable basis for
doubt about the right of the member to inspect the records
demanded. - } { + The court may award reasonable attorney fees
to the prevailing party in an action under this section. + }
(4) If the court orders inspection and copying of the records
demanded, it may impose reasonable restrictions on the use or
distribution of the records by the demanding member.
(5) No order shall be issued under this section without notice
to the corporation at least five days in advance of the time
specified for the hearing unless a different period is fixed by
the court. The member's request shall be set for hearing at the
earliest possible time and shall take precedence over all
matters, except matters of the same character and hearings on
preliminary injunctions under ORCP 79 B(3).
SECTION 43. ORS 70.415 is amended to read:
70.415. If a derivative action is successful in whole or in
part or if anything is received by the plaintiff as a result of a
judgment, compromise or settlement of an action or claim, the
court { - may award the plaintiff reasonable expenses,
including reasonable attorney fees, and - } shall direct the
plaintiff to remit to the limited partnership the remainder of
those proceeds received by the plaintiff. { + The court may
award reasonable attorney fees to the prevailing party in a
derivative action. + }
SECTION 44. ORS 74A.3050 is amended to read:
74A.3050. (1) If a funds transfer is completed but execution of
a payment order by the receiving bank in breach of ORS 74A.3020
results in delay in payment to the beneficiary, the bank is
obliged to pay interest to either the originator or the
beneficiary of the funds transfer for the period of delay caused
by the improper execution. Except as provided in subsection (3)
of this section, additional damages are not recoverable.
(2) If execution of a payment order by a receiving bank in
breach of ORS 74A.3020 results in noncompletion of the funds
transfer, failure to use an intermediary bank designated by the
originator or issuance of a payment order that does not comply
with the terms of the payment order of the originator, the bank
is liable to the originator for the expenses of the originator in
the funds transfer and for incidental expenses and interest
losses, to the extent not covered by subsection (1) of this
section, resulting from the improper execution. Except as
provided in subsection (3) of this section, additional damages
are not recoverable.
(3) In addition to the amounts payable under subsections (1)
and (2) of this section, damages, including consequential
damages, are recoverable to the extent provided in an express
written agreement of the receiving bank.
(4) If a receiving bank fails to execute a payment order it was
obliged by express agreement to execute, the receiving bank is
liable to the sender for the expenses of the sender in the
transaction and for incidental expenses and interest losses
resulting from the failure to execute. Additional damages,
including consequential damages, are recoverable to the extent
provided in an express written agreement of the receiving bank,
but are not otherwise recoverable.
(5) { - Reasonable attorney fees are recoverable if demand
for compensation under subsection (1) or (2) of this section is
made and refused before an action is brought on the claim. If a
claim is made for breach of an agreement under subsection (4) of
this section and the agreement does not provide for damages,
reasonable attorney fees are recoverable if demand for
compensation under subsection (4) of this section is made and
refused before an action is brought on the claim. - } { + The
court may award reasonable attorney fees to the prevailing party
in an action to recover amounts under this section. + }
(6) Except as stated in this section, the liability of a
receiving bank under subsections (1) and (2) of this section may
not be varied by agreement.
SECTION 45. ORS 74A.4040 is amended to read:
74A.4040. (1) Subject to ORS 74A.2110 (5) and 74A.4050 (4) and
(5), if a beneficiary's bank accepts a payment order, the bank is
obliged to pay the amount of the order to the beneficiary of the
order. Payment is due on the payment date of the order, but if
acceptance occurs on the payment date after the close of the
funds-transfer business day of the bank, payment is due on the
next funds-transfer business day. If the bank refuses to pay
after demand by the beneficiary and receipt of notice of
particular circumstances that will give rise to consequential
damages as a result of nonpayment, the beneficiary may recover
damages resulting from the refusal to pay to the extent the bank
had notice of the damages, unless the bank proves that it did not
pay because of a reasonable doubt concerning the right of the
beneficiary to payment.
(2) If a payment order accepted by the beneficiary's bank
instructs payment to an account of the beneficiary, the bank is
obliged to notify the beneficiary of receipt of the order before
midnight of the next funds-transfer business day following the
payment date. If the payment order does not instruct payment to
an account of the beneficiary, the bank is required to notify the
beneficiary only if notice is required by the order. Notice may
be given by first class mail or any other means reasonable in the
circumstances. If the bank fails to give the required notice, the
bank is obliged to pay interest to the beneficiary on the amount
of the payment order from the day notice should have been given
until the day the beneficiary learned of receipt of the payment
order by the bank. No other damages are recoverable.
{ - Reasonable attorney fees are also recoverable if demand for
interest is made and refused before an action is brought on the
claim. - } { + The court may award reasonable attorney fees to
the prevailing party in an action to recover interest owing by
reason of the provisions of this subsection. + }
(3) The right of a beneficiary to receive payment and damages
as stated in subsection (1) of this section may not be varied by
agreement or a funds-transfer system rule. The right of a
beneficiary to be notified as stated in subsection (2) of this
section may be varied by agreement of the beneficiary or by a
funds-transfer system rule if the beneficiary is notified of the
rule before initiation of the funds transfer.
SECTION 46. ORS 79.5070 is amended to read:
79.5070. (1) If it is established that the secured party is not
proceeding in accordance with the provisions of ORS 79.5010 to
79.5070 disposition may be ordered or restrained on appropriate
terms and conditions. If the disposition has occurred the debtor
or any person entitled to notification or whose security interest
has been made known to the secured party prior to the disposition
has a right to recover from the secured party any loss caused by
a failure to comply with the provisions of ORS 79.5010 to
79.5070. If the collateral is consumer goods, the debtor has a
right to recover in any event an amount not less than $350 { - ,
together with the debtor's reasonable attorney fees - } . { +
The court may award reasonable attorney fees to the prevailing
party in an action under this subsection. + }
(2) The fact that a better price could have been obtained by a
sale at a different time or in a different method from that
selected by the secured party is not of itself sufficient to
establish that the sale was not made in a commercially reasonable
manner. If the secured party either sells the collateral in the
usual manner in any recognized market therefor or if the secured
party sells at the price current in such market at the time of
the sale or if the secured party has otherwise sold in conformity
with reasonable commercial practices among dealers in the type of
property sold the secured party has sold in a commercially
reasonable manner. The principles stated in the two preceding
sentences with respect to sales also apply as may be appropriate
to other types of disposition. A disposition which has been
approved in any judicial proceeding or by any bona fide
creditors' committee or representative of creditors shall
conclusively be deemed to be commercially reasonable, but this
sentence does not indicate that any such approval must be
obtained in any case nor does it indicate that any disposition
not so approved is not commercially reasonable.
SECTION 47. ORS 83.650 is amended to read:
83.650. (1) No retail installment contract shall require or
entail the execution, by the buyer, of any note or series of
notes, which when separately negotiated will cut off as against
third parties any right of action or defense which the buyer may
have against the seller.
(2) The rights of a holder in due course of any negotiable
instrument executed contrary to subsection (1) of this section
are not impaired by reason of the violation of subsection (1) of
this section, but the buyer may bring an action against the
seller for the recovery of any loss or expense { - , including
attorney fees in defending an action on the instrument by the
holder, - } incurred by reason of the violation of subsection
(1) of this section. The buyer's action may be joined with any
other right of action the buyer has against the seller arising
out of the installment sale. { + The court may award reasonable
attorney fees to the prevailing party in an action under this
section. + }
SECTION 48. ORS 86.260 is amended to read:
86.260. (1) If a lender has a requirement that the borrower pay
funds into a lender's security protection provision for the
payment of property taxes on property that is the security for
the real estate loan agreement, insurance premiums, and similar
charges, and there are funds in the account, the lender shall pay
the taxes or the amount in the account if less than the taxes
due, in time to take advantage of any discount authorized by ORS
311.505, and all other charges on or before the due dates for
payments.
(2)(a) If the lender fails to pay the taxes in accordance with
subsection (1) of this section resulting in a loss of discount to
the borrower, the lender shall credit the lender's security
protection provision in an amount equal to the amount of discount
denied on account of such failure, together with any interest
that has accrued on the unpaid property taxes to the date the
property taxes are finally paid.
(b) If the failure of the lender to comply with subsection (1)
of this section is willful and results in the loss to the
borrower of the discount, or if the failure to comply was not
willful but upon discovery of the failure to comply and the loss
of discount, the lender fails to credit the lender's security
protection provision required by paragraph (a) of this
subsection, the borrower shall have a cause of action against the
lender to recover an amount equal to 15 times the amount of
discount the borrower would have received, together with any
interest that accrued on the unpaid property taxes to the date of
recovery. { - Any borrower recovering damages under this
section shall be entitled to reasonable attorney fees at trial
and on appeal as determined by the court in addition to costs and
necessary disbursements. - } { + The court may award reasonable
attorney fees to the prevailing party in an action under this
section. + }
SECTION 49. ORS 86.265 is amended to read:
86.265. { + (1) + } A violation of ORS 86.205 to 86.275 by a
lender shall render the lender's security protection provision
voidable at the option of the borrower, and the lender shall be
liable to the borrower in an amount equal to { - : - }
{ - (1) - } the borrower's actual damages or $100, whichever
is greater { + . + } { - , and - }
(2) { + The court shall award reasonable attorney fees to the
prevailing party in an action under this section. + } { - In
the case of any successful action to enforce the foregoing
liability, the court costs of the action together with reasonable
attorney fees at trial and on appeal as determined by the court
if the court finds that written demand for the payment of the
borrower's claim was made on the lender not less than 10 days
before the commencement of the action. No attorney fees shall be
allowed to the borrower if the court finds that the lender
tendered to the borrower, prior to the commencement of the
action, an amount not less than the damages awarded to the
borrower. - }
SECTION 50. ORS 86.720 is amended to read:
86.720. (1) Within 30 days after performance of the obligation
secured by the trust deed, the beneficiary shall deliver a
written request to the trustee to reconvey the estate of real
property described in the trust deed to the grantor. Within 30
days after the beneficiary delivers the written request to
reconvey to the trustee, the trustee shall reconvey the estate of
real property described in the trust deed to the grantor. In the
event the obligation is performed and the beneficiary refuses to
request reconveyance or the trustee refuses to reconvey the
property, the beneficiary or trustee so refusing shall be liable
as provided by ORS 86.140 in the case of refusal to execute a
discharge or satisfaction of a mortgage on real property. The
trustee may charge a reasonable fee for all services involved in
the preparation, execution and recordation of any reconveyance
executed pursuant to this section.
(2) If a full reconveyance of a trust deed has not been
executed and recorded pursuant to the provisions of subsection
(1) of this section within 60 calendar days of the date the
obligation was fully satisfied, then:
(a) If the obligation was satisfied by a title insurance
company or agent or by payment through an escrow transacted by
the title insurance company or agent, upon the written request of
the grantor or the grantor's successor in interest, the tender of
reasonable charges and the compliance with the notice
requirements of subsection (3) of this section, the title
insurance company or agent shall prepare, execute and record a
release of trust deed.
(b) In all cases not described in paragraph (a) of this
subsection, upon the written request of the grantor or the
grantor's successor in interest, the tender of reasonable charges
and the compliance with the notice requirements of subsection (3)
of this section, the title insurance company or agent may
prepare, execute and record a release of trust deed.
(3) Prior to the issuance and recording of a release pursuant
to this section, the title insurance company or agent shall give
notice of the intention to record a release of trust deed to the
trustee (except when the title company or agent is the trustee),
grantor and beneficiary of record, or their successors in
interest of record. Notice shall be effective upon receipt. Such
notice shall:
(a) Provide that the parties to whom such notice is sent shall
have a period of 30 days to send to the title company or agent
their written objections to the execution and recording of the
release of trust deed; and
(b) Be delivered by certified mail with return receipt and
postage prepaid, addressed to the named interested parties at
their last-known addresses.
(4) The release of trust deed shall recite on the first page
that it has been executed and recorded pursuant to the provisions
of this section. The release shall be properly acknowledged and
shall set forth:
(a) The name of the beneficiary to whom the payment was made;
(b) The name of the original grantor of the trust deed and any
successor in interest on whose behalf payment was made;
(c) The recording reference to the trust deed that is to be
released;
(d) A recital that the obligation secured by the trust deed has
been paid in full;
(e) The date and amount of payment;
(f) The date of receipt of notice required by this section; and
(g) A recital that no written objections were received by the
title insurance company or agent.
(5) The release of trust deed executed pursuant to this section
shall be entitled to recordation and, when recorded, shall be
deemed to be the equivalent of a reconveyance of a trust deed.
(6) The title insurance company or agent shall not record or
cause to be recorded a release of trust deed when any of the
following circumstances exist:
(a) The 30-day period following notice given under this section
has not expired; or
(b) Written objection to such recordation has been received by
the title insurance company or agent from any of the parties to
whom notice was sent.
(7) The trustee, title insurance company or agent may charge a
reasonable fee for all services involved in the preparation,
execution, recordation and compliance with this section, to
effect the release of trust deed.
(8) Subsection (2) of this section does not excuse the
beneficiary or trustee from compliance with subsection (1) of
this section.
(9) In addition to any other remedy provided by law, a title
insurance company or agent preparing, executing or recording a
release of trust deed shall be liable to any party for damages
{ - , including attorney fees, - } that any person may sustain
by reason of the negligence or willful misconduct of the title
insurance company or agent in connection with the issuance,
execution or recording of the release pursuant to this section.
{ + The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
(10) As used in this section, 'agent' means an authorized
issuer of title insurance policies of a title insurance company
who is licensed as an agent for that purpose pursuant to ORS
chapter 744.
(11) Subsections (2) to (10) of this section shall be
applicable only to full reconveyances of the property described
in the trust deed and not to reconveyances of parts or portions
of the property.
(12) Subsections (1) to (11) of this section are applicable to
all trust deeds, whether executed before, on or after November 4,
1993.
(13) A title insurance company or agent is not required to
prepare, execute and record a release of trust deed under
subsections (2) to (11) of this section if the obligation secured
by the trust deed was satisfied prior to November 4, 1993.
SECTION 51. ORS 86.742 is amended to read:
86.742. (1) If the trustee fails to give notice of the sale to
any person entitled to notice under ORS 86.740 (1)(c), and such
person did not have actual notice of the sale at least 25 days
prior to the date the trustee conducted the sale, such omitted
person shall have the same rights possessed by the holder of a
junior lien or interest who was omitted as a party defendant in a
judicial foreclosure proceeding, and the purchaser at the
trustee's sale or the purchaser's heirs, assigns or transferees,
shall have the same rights possessed by a purchaser at a
sheriff's sale following a judicial foreclosure.
(2) The omitted person may also commence an action against the
trustee in the circuit court in the county where the real
property is located. In an action against the trustee, the
omitted person shall be entitled to damages upon proof that:
(a) The trustee did not give notice of the sale to the omitted
person in the manner required by ORS 86.740 (1)(c) and 86.750;
(b) A search of the record under the name of the grantor as it
appears on the trust deed, or the name of the grantor's successor
in interest, would have revealed the omitted person's interest;
(c) The omitted person could and would have cured the default
under ORS 86.753; and
(d) The omitted person sustained actual damages as a result of
such person's loss of the opportunity to cure the default under
ORS 86.753 (1).
(3) In an action against the trustee under subsection (2) of
this section, any defendant or third party defendant may move for
dismissal on the ground that the omitted person would not or
could not have cured the default and reinstated the trust deed if
the omitted person had received the notice required by ORS 86.740
(1)(c). The court shall hold a hearing on such motion prior to
any hearing on any motion for summary judgment, and prior to
trial of the action. The court shall deny the motion only if the
omitted person produces affidavits or other evidence sufficient
for a reasonable jury to find, applying a standard of clear and
convincing evidence, that the omitted person had the financial
ability to cure the default under ORS 86.753 prior to the date of
the trustee's sale, and that the omitted person would have done
so had the omitted person received the notice required by ORS
86.740 (1)(c). If the court grants the motion to dismiss it shall
award attorney fees pursuant to subsection (5) of this section.
(4) In any action against the trustee or any other party under
this section the omitted person shall plead that the omitted
person did not have actual knowledge of the sale at least 25 days
prior to the date the trustee conducted the sale, but thereafter
the defendant shall have the burden of proving that the omitted
person did have such notice.
(5) In all suits brought under this section, the applicable
court { - shall - } { + may + }, upon entering judgment,
allow { + to the prevailing party + } as a part of the costs a
reasonable amount for attorney fees at trial and on appeal.
(6) The remedies described in subsections (1) to (5) of this
section shall be the sole remedies available to a person entitled
to notice of foreclosure by advertisement and sale under ORS
86.740 (1)(c), who failed to receive such notice. Such a person's
failure to redeem or to commence an action against the trustee
within five years of the date of a trustee's sale under ORS
86.755 shall bar any action under this section or any other
applicable law.
SECTION 52. ORS 90.710 is amended to read:
90.710. (1) Any person aggrieved by a violation of ORS 90.525,
90.630, 90.680 or 90.765 shall have a cause of action against the
violator thereof for any damages sustained as a result of the
violation or $200, whichever is greater.
(2)(a) Except as provided in paragraphs (b) and (c) of this
subsection, a tenant shall have a cause of action against the
landlord for a violation of ORS 90.510 (4) for any damages
sustained as a result of such violation, or $100, whichever is
greater.
(b) However, the tenant shall have no cause of action if,
within 10 days after the tenant requests a written agreement from
the landlord, the landlord offers to enter into a written
agreement which does not substantially alter the terms of the
oral agreement made when the tenant rented the space and which
complies with ORS 90.100 to 90.940.
(c) If, within 10 days after being served with a complaint
alleging a violation of ORS 90.510, the landlord offers to enter
into a written rental agreement with each of the other tenants of
the landlord which does not substantially alter the terms of the
oral agreement made when each tenant rented the space and which
complies with ORS 90.100 to 90.940, then the landlord shall not
be subject to any further liability to such other tenants for
previous violations of ORS 90.510.
(d) A purchaser shall have a cause of action against a seller
for damages sustained or $100, whichever is greater, who sells
the tenant's manufactured dwelling or floating home to the
purchaser before the landlord has accepted the purchaser as a
tenant if:
(A) The landlord rejects the purchaser as a tenant; and
(B) The seller knew the purchaser intended to leave the
manufactured dwelling or floating home on the space.
(3) { - Any person who brings an action under subsection (1)
or (2) of this section may also recover costs, necessary
disbursements and reasonable attorney fees at trial and on appeal
as determined by the court. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
SECTION 53. ORS 92.018 is amended to read:
92.018. A person who buys a lot or parcel that was created
without approval of the appropriate city or county authority may
bring an individual action against the seller in an appropriate
court to recover damages or to obtain equitable relief. { - The
court may award, in addition to the remedies provided in this
section, both reasonable attorney fees and costs incurred on
trial and on appeal. - } { + The court may award reasonable
attorney fees to the prevailing party in an action under this
section. + }
SECTION 54. ORS 96.030 is amended to read:
96.030. If a partition fence is not repaired or rebuilt
according to the directive mentioned in ORS 96.020, the
complainant may repair or rebuild it and recover the value
thereof from the delinquent party before any court of competent
jurisdiction { - , together with costs and disbursements and
reasonable attorney fees at trial and on appeal, to be adjudged
by the court - } . { + The court may award reasonable attorney
fees to the prevailing party in an action under this section. + }
SECTION 55. ORS 97.760 is amended to read:
97.760. (1) Apart from any criminal prosecution, an Indian
tribe or enrolled member thereof shall have a civil action to
secure an injunction, damages or other appropriate relief against
any person who is alleged to have violated ORS 97.745. The action
must be brought within two years of the discovery of the
violation by the plaintiff. The action may be filed in the
circuit court of the county in which the subject grave, cairn,
remains or artifacts are located, or within which the defendant
resides.
(2) Any conviction pursuant to ORS 97.990 (5) shall be prima
facie evidence of a violation of ORS 97.745 in an action brought
under this section.
(3) If the plaintiff prevails:
{ - (a) The court may award reasonable attorney fees to the
plaintiff; - }
{ - (b) - } { + (a) + } The court may grant injunctive or
such other equitable relief as is appropriate, including
forfeiture of any artifacts or remains acquired or equipment used
in the violation. The court shall order the disposition of any
items forfeited as it sees fit, including the reinterment of any
human remains in accordance with ORS 97.745 (1);
{ - (c) - } { + (b) + } The plaintiff shall recover imputed
damages of $500 or actual damages, whichever is greater. Actual
damages include special and general damages, which include
damages for emotional distress;
{ - (d) - } { + (c) + } The plaintiff may recover punitive
damages upon proof that the violation was willful. Punitive
damages may be recovered without proof of actual damages. All
punitive damages shall be paid by the defendant to the Commission
on Indian Services for the purposes of Indian historic
preservation; and
{ - (e) - } { + (d) + } An award of imputed or punitive
damages may be made only once for a particular violation by a
particular person, but shall not preclude the award of such
damages based on violations by other persons or on other
violations.
(4) { - If the defendant prevails, - } The court may award
reasonable attorney fees to the { - defendant - } { +
prevailing party in an action under this section + }.
SECTION 56. ORS 105.831 is amended to read:
105.831. If a court finds that a person has intentionally
damaged or removed mining equipment or has intentionally removed
or injured minerals, soil, gravel, sand, trees or shrubs located
within the mining claim of another person, the court shall award
actual damages to such other person, { - including costs and
attorney fees and - } including any liability of such other
person to third persons resulting from such damage, removal or
injury. In an appropriate case, the court may award punitive
damages to such other person. { + The court may award reasonable
attorney fees to the prevailing party in an action under this
section. + }
SECTION 57. ORS 133.739 is amended to read:
133.739. (1) Any person whose wire, electronic or oral
communication was intercepted, disclosed or used in violation of
ORS 133.724 or 133.737 shall have a civil cause of action against
any person who willfully intercepts, discloses or uses, or
procures any other person to intercept, disclose or use such
communication and shall be entitled to recover from any such
person:
(a) Actual damages but not less than damages computed at the
rate of $100 a day for each day of violation or $1,000, whichever
is greater; { + and + }
(b) Punitive damages { + . + } { - ; and - }
{ - (c) Reasonable attorney fees at trial and on appeal. - }
(2) A good faith reliance on a court order or legislative
authorization shall constitute a complete defense to any civil
action brought under this section.
(3) Nothing in ORS 41.910, 133.721 to 133.739 and 133.992 is
intended to abrogate any other private civil remedy for invasion
of privacy.
{ + (4) The court may award reasonable attorney fees to the
prevailing party in an action under this section. + }
SECTION 58. ORS 166.725 is amended to read:
166.725. (1) Any circuit court may, after making due provision
for the rights of innocent persons, enjoin violations of the
provisions of ORS 166.720 (1) to (4) by issuing appropriate
orders and judgments, including, but not limited to:
(a) Ordering a divestiture by the defendant of any interest in
any enterprise, including real property.
(b) Imposing reasonable restrictions upon the future activities
or investments of any defendant, including, but not limited to,
prohibiting any defendant from engaging in the same type of
endeavor as the enterprise in which the defendant was engaged in
violation of the provisions of ORS 166.720 (1) to (4).
(c) Ordering the dissolution or reorganization of any
enterprise.
(d) Ordering the suspension or revocation of a license, permit
or prior approval granted to any enterprise by any agency of the
state.
(e) Ordering the forfeiture of the charter of a corporation
organized under the laws of this state, or the revocation of a
certificate of authority authorizing a foreign corporation to
conduct business within this state, upon finding that the board
of directors or a managerial agent acting on behalf of the
corporation, in conducting the affairs of the corporation, has
authorized or engaged in conduct in violation of ORS 166.720 (1)
to (4) and that, for the prevention of future criminal activity,
the public interest requires the charter of the corporation
forfeited and the corporation dissolved or the certificate of
authority revoked.
(2) All property, real or personal, including money, used in
the course of, derived from or realized through conduct in
violation of a provision of ORS 166.715 to 166.735 is subject to
civil forfeiture to the state. The state shall dispose of all
forfeited property as soon as commercially feasible. If property
is not exercisable or transferable for value by the state, it
shall expire. All forfeitures or dispositions under this section
shall be made with due provision for the rights of innocent
persons. Forfeited property shall be distributed as follows:
(a)(A) All moneys and the clear proceeds of all other property
forfeited shall be deposited with the State Treasurer to the
credit of the Common School Fund.
(B) For purposes of subparagraph (A) of this paragraph, ' clear
proceeds' means proceeds of forfeited property less costs of
maintaining and preserving property pending its sale or other
disposition, less costs of sale or disposition and, if the
Department of Justice has not otherwise recovered its costs and
expenses of the investigation and prosecution leading to the
forfeiture, less 30 percent of the remaining proceeds of the
property which is awarded to the department as reasonable
reimbursement for costs of such investigation and prosecution.
(b) Any amounts awarded to the Department of Justice pursuant
to paragraph (a) of this subsection shall be deposited in the
Criminal Justice Revolving Account in the State Treasury.
(3) Property subject to forfeiture under this section may be
seized by a police officer, as defined in ORS 133.525 (2), upon
court process. Seizure without process may be made if:
(a) The seizure is incident to a lawful arrest or search or an
inspection under an administrative inspection warrant; or
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
based upon this section.
(4) In the event of a seizure under subsection (3) of this
section, a forfeiture proceeding shall be instituted promptly.
Property taken or detained under this section shall not be
subject to replevin, but is deemed to be in the custody of the
police officer making the seizure, subject only to the order of
the court. When property is seized under this section, pending
forfeiture and final disposition, the police officer may:
(a) Place the property under seal;
(b) Remove the property to a place designated by the court; or
(c) Require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(5) The Attorney General, any district attorney or any state
agency having jurisdiction over conduct in violation of a
provision of ORS 166.715 to 166.735 may institute civil
proceedings under this section. In any action brought under this
section, the circuit court shall give priority to the hearing and
determination. Pending final determination, the circuit court may
at any time enter such injunctions, prohibitions or restraining
orders, or take such actions, including the acceptance of
satisfactory performance bonds, as the court may deem proper. The
Attorney General, district attorney or state agency bringing an
action under this section { - shall be entitled to recover - }
{ + may be awarded + }, upon entry of a final judgment or
decree in favor of the state, attorney fees and costs of
investigation and litigation, reasonably incurred. Amounts
recovered may include costs and expenses of state and local
governmental departments and agencies incurred in connection with
the investigation or litigation.
(6) Any aggrieved person may institute a proceeding under
subsection (1) of this section. In such proceeding, relief shall
be granted in conformity with the principles that govern the
granting of injunctive relief from threatened loss or damage in
other civil cases, except that no showing of special or
irreparable damage to the person shall have to be made. Upon the
execution of proper bond against damages for an injunction
improvidently granted and a showing of immediate danger of
significant loss or damage, a temporary restraining order and a
preliminary injunction may be issued in any such action before a
final determination on the merits.
(7)(a) Any person who is injured by reason of any violation of
the provisions of ORS 166.720 (1) to (4) shall have a cause of
action for three-fold the actual damages sustained and, when
appropriate, punitive damages. { - Such person shall also
recover attorney fees in the trial and appellate courts and costs
of investigation and litigation, reasonably incurred. - }
(b) The defendant or any injured person may demand a trial by
jury in any civil action brought pursuant to this section.
(c) Any injured person shall have a right or claim to forfeited
property or to the proceeds derived therefrom superior to any
right or claim the state has in the same property or proceeds.
(8) An investigative agency may bring an action for civil
penalties for any violation of ORS 166.720 (1) to (4). Upon proof
of any such violation, the court shall impose a civil penalty of
not more than $250,000.
(9) A final judgment or decree rendered in favor of the state
in any criminal proceeding under ORS 166.715 to 166.735 shall
estop the defendant in any subsequent civil action or proceeding
brought by the state or any other person as to all matters as to
which such judgment or decree would be an estoppel as between the
state and the defendant.
(10) The Attorney General may, upon timely application,
intervene in any civil action or proceeding brought under
subsection (6) or subsection (7) of this section if the Attorney
General certifies that, in the opinion of the Attorney General,
the action or proceeding is of general public importance. In such
action or proceeding, the state shall be entitled to the same
relief as if the Attorney General instituted the action or
proceeding.
(11) Notwithstanding any other provision of law, a criminal or
civil action or proceeding under ORS 166.715 to 166.735 may be
commenced at any time within five years after the conduct in
violation of a provision of ORS 166.715 to 166.735 terminates or
the cause of action accrues. If a criminal prosecution or civil
action or other proceeding is brought, or intervened in, to
punish, prevent or restrain any violation of the provisions of
ORS 166.715 to 166.735, the running of the period of limitations
prescribed by this section with respect to any cause of action
arising under subsection (6) or subsection (7) of this section
which is based in whole or in part upon any matter complained of
in any such prosecution, action or proceeding shall be suspended
during the pendency of such prosecution, action or proceeding and
for two years following its termination.
(12) The application of one civil remedy under any provision of
ORS 166.715 to 166.735 shall not preclude the application of any
other remedy, civil or criminal, under ORS 166.715 to 166.735 or
any other provision of law. Civil remedies under ORS 166.715 to
166.735 are supplemental and not mutually exclusive.
{ + (13) The court may award reasonable attorney fees to the
prevailing party in a civil action under this section. + }
SECTION 59. ORS 192.590 is amended to read:
192.590. (1) Any customer who suffers any ascertainable loss as
a result of a willful violation of ORS 192.550 to 192.595 by any
person, may bring an individual action in an appropriate court to
recover actual damages or $1,000, whichever is greater.
(2) Any customer who suffers any ascertainable loss as a result
of a negligent violation of ORS 192.550 to 192.595 by any person,
may bring an individual action in an appropriate court to recover
actual damages.
(3) { - In any successful action to enforce civil liability
for violation of the provisions of ORS 192.550 to 192.595, the
customer may recover the cost of the action, together with
reasonable attorney fees at trial and on appeal as determined by
the court. - } { + The court may award reasonable attorney fees
to the prevailing party in an action under this section. + }
(4) An action to enforce any provision of ORS 192.550 to
192.595 must be commenced within two years after the date on
which the violation occurred.
(5) Evidence obtained in violation of ORS 192.550 to 192.595 is
inadmissible in any proceeding.
SECTION 60. ORS 223.615 is amended to read:
223.615. In any suit authorized by ORS 223.610, { - if a
decree of foreclosure is entered, the governmental unit is
entitled to recover, as part of the moneys to be made on the sale
on execution of the property involved, such sum as the court may
deem reasonable as attorney fees at trial and on appeal - } { +
the court may award reasonable attorney fees to the prevailing
party + }. { - The sum so allowed - } { + Amounts awarded to
the governmental unit + } shall be a lien upon the property.
SECTION 61. ORS 279.365 is amended to read:
279.365. (1) The Commissioner of the Bureau of Labor and
Industries or any other person may bring a civil action in any
court of competent jurisdiction to require a public agency under
a public contract with a contractor to withhold twice the wages
in dispute if it is shown that the contractor or subcontractor on
the contract has intentionally failed or refused to pay the
prevailing rate of wage to workers employed on that contract and
to require the contractor to pay the prevailing rate of wage and
any deficiencies that can be shown to exist because of improper
wage payments already made. In addition to other relief, the
court may also enjoin any such contractor or subcontractor from
committing future violations. The contractor or subcontractor
involved shall be named as a party in all civil actions brought
under this section. In addition to other costs, the court may
award the prevailing party a reasonable attorney fee at the trial
and on appeal. { - However, no attorney fee may be awarded
against the Commissioner of the Bureau of Labor and Industries
under this section. - }
(2) The court shall require any party { - , other than the
Commissioner of the Bureau of Labor and Industries, - } that
brings a civil action under this section to post a bond
sufficient to cover the estimated attorney fees and costs to the
public agency and to the contractor or subcontractor of any
temporary restraining order, preliminary injunction or permanent
injunction awarded in the action, in the event that the party
bringing the action does not ultimately prevail.
(3) In addition to any other relief, the court in a civil
action brought under this section may enjoin the public agency
from contracting with the contractor or subcontractor if the
court finds that the Commissioner of the Bureau of Labor and
Industries would be entitled to place the contractor or
subcontractor on the ineligible list established under ORS
279.361 (1). If the court issues such an injunction, the
commissioner shall place the contractor or subcontractor on the
list for a period of three years, subject to the provision of ORS
279.361 (2).
(4) 'Public agency' has the meaning given the term in ORS
279.011.
SECTION 62. ORS 307.525 is amended to read:
307.525. In addition to any other provision of law, if a
landlord violates ORS 307.517 (1)(c), a tenant may recover
damages in an amount triple the actual damages sustained as a
result of the violation { - and also may recover costs and
attorney fees - } . { + The court may award reasonable attorney
fees to the prevailing party in an action under this section. + }
SECTION 63. ORS 311.673 is amended to read:
311.673. (1) The department shall have a lien against the
tax-deferred property for the payment of the deferred taxes plus
interest thereon and any fees paid to the county clerk by the
department in connection with the recording, release or
satisfaction of the lien. The liens for deferred taxes shall
attach to the property on July 1 of the year in which the taxes
were assessed. The deferred property tax liens shall have the
same priority as other real property tax liens except that the
lien of mortgages or trust deeds which are recorded prior in time
to the attachment of the lien for deferred taxes shall be prior
to the liens for deferred taxes.
(2) The lien may be foreclosed by the department as if it were
a purchase money mortgage under ORS chapter 88. { - Reasonable
attorney fees at trial and on appeal and costs may be granted the
department in a suit for foreclosure of its lien. - } { + The
court may award reasonable attorney fees to the prevailing party
in a foreclosure action under this section. + }
(3) Receipts from foreclosure proceedings shall be credited in
the same manner as other repayments of deferred property taxes
under ORS 311.701.
(4) This section applies only to liens arising prior to October
3, 1989.
SECTION 64. ORS 311.679 is amended to read:
311.679. (1) At the time that the taxpayer elects to defer
property taxes under ORS 311.666 to 311.696 or if the taxpayer
has elected to defer property taxes prior to January 1, 1990, or
between January 1, 1990 and June 30, 1990, the department shall
estimate the amount of property taxes that will be deferred for
tax years beginning on or after July 1, 1990, interest thereon
and any fees paid to the county clerk by the department in
connection with lien recording, release or satisfaction.
Thereafter, the department shall have a lien in the amount of the
estimate.
(2) The lien created under subsection (1) of this section shall
attach to the property to which the election to defer relates on
July 1 of the tax year of initial deferral or on July 1, 1990,
whichever is applicable.
(3) The lien created under subsection (1) of this section in
the amount of the estimate shall have the same priority as other
real property tax liens except that the lien of mortgages or
trust deeds which are recorded prior in time to the attachment of
the lien for deferred taxes shall be prior to the liens for
deferred taxes.
(4) If during the period of tax deferment, the amount of taxes,
interest and fees exceeds the estimate, the department shall have
a lien for the amount of the excess. The liens for the excess
shall attach to the property on July 1 of the tax year in which
the excess occurs. The lien for the excess shall have the same
priority as other real property tax liens, except that the lien
of mortgages or trust deeds recorded prior in time to the date
that the department records an amendment to its estimate to
reflect its lien for the excess shall be prior to the lien for
the excess.
(5) Notwithstanding ORS 311.675 (2), the notice of lien for
deferred taxes recorded as provided in ORS 311.675 (1) and (2)
arising on or after October 3, 1989, shall list the amount of the
estimate of deferred taxes, interest and fees made by the
department under subsection (1) of this section and any amendment
to the notice to reflect a lien for excess, as described under
subsection (4) of this section, shall list the amount of the
excess that the department claims as lien. If notice of lien with
respect to any homestead has been recorded as provided under ORS
311.675 (1) and (2) prior to January 1, 1990, and the lien has
not been released or satisfied, the department shall cause a
further notice of lien to be recorded in the mortgage records of
the county. The further notice of lien shall list the amount of
the estimate of deferred taxes and interest made by the
department under subsection (1) of this section and any amendment
to the notice to reflect a lien for excess, described under
subsection (4) of this section, and shall list the amount of the
excess that the department claims as lien.
(6) A lien created under this section may be foreclosed by the
department as if it were a purchase money mortgage under ORS
chapter 88. { - Reasonable attorney fees at trial and on appeal
and costs may be granted the department in a suit for foreclosure
of its lien. - } { + The court may award reasonable attorney
fees to the prevailing party in a foreclosure action under this
section. + }
(7) Receipts from foreclosure proceedings shall be credited in
the same manner as other repayments of deferred property taxes
under ORS 311.701.
(8) By means of voluntary payment made as provided under ORS
311.690, the taxpayer may limit the amount of the lien for
deferred taxes created under this section. If the taxpayer
desires that the limit be reflected in the records of the county,
the taxpayer must request, subject to any rules adopted by the
department, that the department cause a partial satisfaction of
the lien to be recorded in the county. Upon receipt of such a
request, the department shall cause a partial satisfaction, in
the amount of the voluntary payment, to be so recorded. Nothing
in this subsection shall affect the priority of the liens of the
department, as originally created under subsections (1) and (4)
of this section.
(9) Nothing in this section shall affect any lien arising under
ORS 311.666 to 311.696 for taxes assessed before January 1, 1990.
However, except as provided under this section, no lien for taxes
shall arise under ORS 311.666 to 311.696 for taxes assessed after
December 31, 1989.
(10) This section first applies to liens for deferred taxes
arising on or after October 3, 1989.
SECTION 65. ORS 311.711 is amended to read:
311.711. (1) The officer in charge of the bond lien docket or
assessment lien record shall forward each claim filed under ORS
311.702 to 311.735 to the department which shall determine if the
property is eligible for deferral. If eligibility for special
assessment deferral is established as provided in ORS 311.702 to
311.735, the officer in charge of the bond lien docket or
assessment lien record shall:
(a) Show by an entry on the bond lien docket which property
specially assessed is accorded deferral under ORS 311.702 to
311.735.
(b) Verify to the department the amounts of special assessment
for local improvement subject to deferral for the calendar year,
the rates of interest and accrual dates and any other pertinent
information relating to payment of the deferred amounts.
(2) Until otherwise required by ORS 311.702 to 311.735, the
officer in charge of the bond lien docket or assessment lien
record shall continue to show on the bond lien docket or
assessment lien record that the property with respect to which
the deferral under ORS 311.702 to 311.735 is allowed continues to
be subject to special assessment deferral. The officer in charge
of the bond lien docket or assessment lien record shall make a
separate list of the properties subject to special assessment
deferral and shall show the amount of special assessment for
local improvement deferred for each property, and shall show the
accrued interest added each year on the amount of special
assessment for local improvement deferred and the total accrued
interest.
(3) Interest shall accrue on the amount of the deferred special
assessment for local improvement at the rate of six percent per
annum. Except the interest described in this subsection and the
interest included in the deferred special assessment amounts, no
other interest shall accrue on the amount of deferred special
assessment for local improvement.
(4) The department shall have a lien against the deferred
property for the payment of any deferred special assessment for
local improvement plus interest thereon. The liens for deferred
special assessment for local improvement shall attach to the
property on July 1 of the year in which the special assessment
for local improvement was assessed. The liens for deferred
special assessment for local improvement shall have the same
priority as other liens against real property except that the
lien of mortgages or trust deeds which are recorded prior to the
attachment of the lien for special assessment for local
improvement shall be prior to the liens for deferred special
assessment for local improvement.
(5) The lien may be foreclosed by the department as if it were
a purchase money mortgage under ORS chapter 88. { - Reasonable
attorney fees at trial and on appeal and costs may be granted the
department in a suit for foreclosure of its lien. - } { + The
court may award reasonable attorney fees to the prevailing party
in a foreclosure action under this section. + }
(6) Receipts from foreclosure proceedings shall be credited in
the same manner as other repayments of deferred special
assessment for local improvement under ORS 311.701.
SECTION 66. ORS 311.771 is amended to read:
311.771. (1) The department shall have a lien against the tax
deferred property for the payment of the deferred taxes plus
interest thereon. The liens for deferred taxes shall attach to
the property on July 1 of the year in which the taxes were
assessed. The deferred property tax liens shall have the same
priority as real property tax liens except that the lien of
mortgages or trust deeds which are recorded prior in time to the
lien for deferred taxes under ORS 311.740 to 311.780 shall be
prior to the liens for deferred taxes.
(2) The lien may be foreclosed by the department as if it were
a purchase money mortgage under ORS chapter 88. { - Reasonable
attorney fees at trial and on appeal and costs may be granted the
department in a suit to foreclose its lien. - } { + The court
may award reasonable attorney fees to the prevailing party in a
foreclosure action under this section. + }
(3) Receipts from foreclosure proceedings and from voluntary
payments for deferred taxes shall be paid by the department to
the General Fund.
SECTION 67. ORS 346.630 is amended to read:
346.630. (1) A landlord, as defined in ORS 90.100, may not
refuse to rent a dwelling unit, as defined in ORS 90.100, to a
blind person on the basis of the person's use or possession of a
dog guide.
(2) A blind person shall have a cause of action to recover
compensatory damages or $200, whichever is greater, from any
landlord, as defined in ORS 90.100, who refuses to rent a
dwelling unit, or who charges additional rent, on the basis of
the person's use or possession of a dog guide. { - Any person
recovering damages under this subsection shall be entitled to
reasonable attorney fees as determined by the court in addition
to costs and necessary disbursements. - } { + The court may
award reasonable attorney fees to the prevailing party in an
action under this section. + }
(3) No blind person shall be required to pay an additional
nonrefundable fee or an excessive deposit for the dog guide.
(4) A blind person is liable for any damages done to the
dwelling unit by the dog guide.
SECTION 68. ORS 346.687 is amended to read:
346.687. (1) In addition to and not in lieu of any other
penalty provided by state law, a physically impaired person who
uses an assistance animal or the owner of an assistance animal
may bring an action for economic and noneconomic damages against
any person who steals or, without provocation, attacks the
assistance animal. The physically impaired person or owner may
also bring an action for such damages against the owner of any
animal that, without provocation, attacks an assistance animal.
The action authorized by this subsection may be brought by the
physically impaired person or owner even if the assistance animal
was in the custody or under the supervision of another person
when the theft or attack occurred.
(2) If the theft of or unprovoked attack on an assistance
animal described in subsection (1) of this section results in the
death of the animal or the animal is not returned or if injuries
sustained in the theft or attack prevent the animal from
returning to service as an assistance animal, the measure of
economic damages shall include, but need not be limited to, the
replacement value of an equally trained assistance animal,
without any differentiation for the age or the experience of the
animal. In addition, the physically impaired person or owner may
recover any other costs and expenses, including, but not limited
to, costs of temporary replacement assistance services, whether
provided by another assistance animal or a person, { - and
attorney fees, - } incurred as a result of the theft of or injury
to the animal.
(3) If the theft of or unprovoked attack on an assistance
animal described in subsection (1) of this section results in
injuries from which the animal recovers and returns to service,
or if the animal is stolen but is recovered and returns to
service, the measure of economic damages shall include, but need
not be limited to, the veterinary medical expenses, costs of
temporary replacement assistance services, whether provided by
another assistance animal or a person, and any other costs and
expenses { - , including attorney fees, - } incurred by the
physically impaired person or owner as a result of the theft of
or injury to the animal.
(4) No cause of action arises under this section if the
physically impaired person, owner or the person having custody or
supervision of the assistance animal was committing a criminal or
civil trespass at the time of the theft of or attack on the
assistance animal.
{ + (5) The court shall award reasonable attorney fees to the
prevailing plaintiff in an action under this section. The court
may award reasonable attorney fees and expert witness fees
incurred by a defendant who prevails in the action if the court
determines that the plaintiff had no objectively reasonable basis
for asserting a claim or no objectively reasonable basis for
appealing an adverse decision of a trial court. + }
SECTION 69. ORS 346.690 is amended to read:
346.690. (1) A landlord, as defined in ORS 90.100, shall not
refuse to rent a dwelling unit, as defined in ORS 90.100, to a
physically impaired person on the basis of the person's use or
possession of an assistance animal.
(2) A physically impaired person shall have a cause of action
to recover compensatory damages or $200, whichever is greater,
from any landlord who refuses to rent a dwelling unit, or who
charges additional rent, on the basis of the person's use or
possession of an assistance animal. { - Any person recovering
damages under this subsection shall be entitled to reasonable
attorney fees at trial and on appeal, as determined by the court,
in addition to costs and necessary disbursements. - } { + The
court shall award reasonable attorney fees to the prevailing
plaintiff in an action under this section. The court may award
reasonable attorney fees and expert witness fees incurred by a
defendant who prevails in the action if the court determines that
the plaintiff had no objectively reasonable basis for asserting a
claim or no objectively reasonable basis for appealing an adverse
decision of a trial court. + }
(3) No physically impaired person shall be required to pay an
additional nonrefundable fee or an excessive deposit for the
assistance animal.
(4) A physically impaired person is liable for any damages done
to the dwelling unit by the assistance animal.
SECTION 70. ORS 431.905 is amended to read:
431.905. (1) Any person may bring a civil action in a court of
competent jurisdiction to enforce the requirements of ORS 431.870
to 431.915. The court may grant injunctive relief in any action
brought pursuant to this section.
(2) Punitive damages may also be awarded in any action brought
pursuant to this section.
(3) { - Whenever the person bringing the action pursuant to
this section is the prevailing party, the person shall be awarded
attorney fees and costs by the court. - } { + The court may
award reasonable attorney fees to the prevailing party in an
action under this section. + }
SECTION 71. ORS 455.440 is amended to read:
455.440. (1) If a city, county or government agency requires a
site soil analysis and site recommendation report as a condition
of approval for issuance of a building permit for a residence for
human habitation, and the analysis and report identify the
presence of highly expansive soils, then prior to issuance of the
building permit the city, county or government agency shall:
(a) Include a copy of that report with the construction plans
filed with the building permit issuing agency; and
(b) Record, in the County Clerk Lien Record in the county in
which the property is located, a notice containing:
(A) The legal description of the property; and
(B) An informational notice in substantially the following
form:
_________________________________________________________________
This property has been identified as having highly expansive
soils. This condition may create special maintenance
requirements. Before signing or accepting any instrument
transferring title, persons acquiring title should check with the
appropriate planning or building department.
_________________________________________________________________
(2) No action may be maintained against a city, county or
government agency for failing to meet the requirements of
subsections (1) and (2) of this section.
(3) If a report described in subsections (1) and (2) of this
section identifies the presence of highly expansive soils, the
first transferor shall supply to the first transferee written
suggestions for care and maintenance of the residence to address
problems associated with highly expansive soils.
(4) If the first transferor violates the provisions of
subsection (3) of this section, the first transferee shall have a
cause of action to recover damages of $750 from the first
transferor. { - Any person recovering damages under this
section may be entitled to reasonable attorney fees as determined
by the court in addition to costs and disbursements. - } { +
The court may award reasonable attorney fees to the prevailing
party in an action under this section. + }
SECTION 72. ORS 460.165 is amended to read:
460.165. Subject to ORS 460.035 (1) and 460.085 (1), the
maximum fees described in this section may be collected by the
Department of Consumer and Business Services for examining plans,
for the inspection of elevators, for issuing or renewing an
elevator contractor's license and for processing reports and
issuing the annual permit for the operation of an elevator, as
the case may be. Actual fees shall be prescribed by the
department with approval of the Oregon Department of
Administrative Services. This section applies to the following
fees:
(1) For an elevator contractor's license for each place of
business operated by the applicant, $195.
(2) With the submission of plans and other pertinent data, for
each elevator, $78.
(3) For each periodical or other inspection made by a member of
the department's staff of elevator inspectors, except as provided
in subsection (6) of this section, the following schedule of
maximum fees shall apply:
(a) Dumbwaiter, sidewalk elevator, residential elevator,
residential inclinator or subveyor, $52.
(b) Escalator, lowerator, manlift, stagelift, inclined
elevator, platform hoist or moving walk, $78.
(c) Power-driven elevator with a four floor rise or under, $78.
(d) Power-driven elevator with over a four floor rise, but
under a 10-floor rise, $98.
(e) Power-driven elevator with over 10-floor rise, but under
20-floor rise, $124.
(f) Power-driven elevator with a 20-floor rise or over, $147.
(g) A call back made on a mechanism listed in paragraphs (a) to
(f) of this subsection and made by request or in the continued
existence of a defect, $52.
(4) Special inspections of hoisting or lowering mechanisms
other than elevators or under special agreement between the
department and a person requesting a special inspection shall be
at the maximum rate of $55 per hour for travel and inspection
time.
(5) For the processing of each report of an inspection required
under the provisions of ORS 460.005 to 460.175, $20.
(6) Maximum inspection fee in the case of installation or
alteration of an elevator, if the total cost of the installation
or alteration, other than the inspection fee, is:
(a) $1,000 or under, the maximum fee is $98.
(b) Over $1,000 but under $15,000, the maximum fee is $98 plus
$13 for each $1,000 or fraction of $1,000 by which the cost
exceeds $1,000.
(c) $15,000 or over but under $50,000, the maximum fee is $280
plus $8 for each $1,000 or fraction of $1,000 by which the cost
exceeds $15,000.
(d) $50,000 or over, the maximum fee is $553 plus $3 for each
$1,000 or fraction of $1,000 by which the cost exceeds $50,000.
(7) Whenever an owner or user of any elevator equipment fails
to pay a fee required under this section within 90 days after the
date of depositing written notification in the United States
mail, postage prepaid, and addressed to the last-known address of
said owner or user, the fee shall be considered delinquent and
the fee shall be doubled unless the owner or user of the elevator
equipment establishes to the satisfaction of the department
justification for failure to pay. { - When the department
prevails in an - } { + In any + } action for the collection of
a fee required by this section, the court { - shall also - }
{ + may + } award to the { - department - } { + prevailing
party + } costs and disbursements, and reasonable attorney fees
at trial and on appeal.
SECTION 73. ORS 462.110 is amended to read:
462.110. (1) For the protection of the public, and all members
thereof, the exhibitors and visitors, every race meet licensee
shall carry public liability insurance written on an approved
form by a company licensed to do business in Oregon and in an
amount approved by the commission.
(2) Every person licensed to conduct a race meet shall provide
and deliver to the commission a bond signed by a surety company
authorized to do business in Oregon in such form as is required
by the commission and in an amount determined by the commission.
The bond shall be conditioned that the licensee will pay to the
state all moneys due it under this chapter, including moneys
which escheat pursuant to ORS 462.073 and any fines imposed by
any court or by any state agency; to horsemen or greyhound
owners, all moneys owing and all moneys required to be paid for
breakage, purses and Oregon-bred purse supplements; to persons
presenting valid winning tickets, the amounts owing to them; and
to the special track fund or training track fund, all moneys
required to be paid to those funds by statute or rule. In lieu of
a surety bond the commission may accept a certificate of deposit,
an irrevocable letter of credit, or equivalent which will assure
that the obligations described above are paid, up to the
designated amount.
(3) The Attorney General or the district attorney of the county
wherein the race meet is held shall prosecute all actions on such
bonds on behalf of the state.
(4) Any person having a claim against the licensee for any
obligation covered by the bond or bond substitute, except cause
of action covered by public liability insurance, may prosecute
the same in an action in behalf of the claimant brought in the
name of the state for the use and benefit and at the expense of
such claimant. { - Any claimant recovering in any such action,
suit or proceeding on any such bond shall be entitled to recover
such sum as the court may adjudge reasonable for attorney fees at
trial and on appeal therein for bringing or prosecuting such
action, suit or proceeding. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this subsection. + } If the amount of the bond or bond
substitute is insufficient to cover all obligations, amounts
owing to and for the benefit of the state pursuant to ORS 462.073
(3) shall have priority over any other claims. No action may be
brought for recovery on the bond or bond substitute unless
written notice of the claim is made to the commission and to the
race meet licensee within 120 days after the last day of the race
meet or continuous race meet in which the obligation arose. The
notice must be by registered mail, certified mail with return
receipt or personal service to the licensee or to the licensee's
registered agent. Any action for recovery on the bond or bond
substitute must be brought no earlier than 60 days and no later
than 180 days after service of the written notice on the race
meet licensee or on the licensee's registered agent. These
limitations shall not apply to claims for valid winning tickets
if the claimant has made a timely claim pursuant to ORS 462.073
(2).
(5) Every person licensed to conduct a race meet for horses
shall carry insurance to protect jockeys and, if appropriate,
drivers. The type, form and amount of insurance, and the carrier,
must be approved by the commission.
SECTION 74. ORS 469.421 is amended to read:
469.421. (1) Subject to the provisions of ORS 469.441, any
person submitting a notice of intent, a request for exemption
under ORS 469.320, a request for an expedited review under ORS
469.370, an application for a site certificate or a request to
amend a site certificate shall pay all expenses incurred by the
Energy Facility Siting Council and the Department of Energy
related to the review and decision of the council. These expenses
may include legal expenses, expenses incurred in processing and
evaluating the application, issuing a final order or site
certificate, commissioning an independent study by a contractor
or state agency under ORS 469.360, and changes to the rules of
the council that are specifically required and related to the
particular site certificate application.
(2) Every person submitting a notice of intent to file for a
site certificate, a request for exemption or a request for
expedited review shall submit the fee required under the fee
schedule established under ORS 469.441 to the department when the
notice or request is submitted to the council. To the extent
possible, the full cost of the evaluation shall be paid from the
fee paid under this subsection. However, if costs of the
evaluation exceed the fee, the person submitting the notice or
request shall pay any excess costs shown in an itemized statement
prepared by the council. In no event shall the council incur
evaluation expenses in excess of 110 percent of the fee initially
paid unless the council provides prior notification to the
applicant and a detailed projected budget the council believes
necessary to complete the project. If costs are less than the fee
paid, the excess shall be refunded to the person submitting the
notice or request.
(3) Before submitting a site certificate application, the
applicant shall request from the department an estimate of the
costs expected to be incurred in processing the application. The
department shall inform the applicant of that amount and require
the applicant to make periodic payments of such costs pursuant to
a cost reimbursement agreement. The cost reimbursement agreement
shall provide for payment of 25 percent of the estimated costs
when the applicant submits the application. If costs of the
evaluation exceed the estimate, the applicant shall pay any
excess costs shown in an itemized statement prepared by the
council. In no event shall the council incur evaluation expenses
in excess of 110 percent of the fee initially estimated unless
the council provided prior notification to the applicant and a
detailed projected budget the council believes is necessary to
complete the project. If costs are less than the fee paid, the
council shall refund the excess to the applicant.
(4) Any person who is delinquent in the payment of fees under
subsections (1) to (3) of this section shall be subject to the
provisions of subsection (11) of this section.
(5) Subject to the provisions of ORS 469.441, each holder of a
certificate shall pay an annual fee, due every July 1 following
issuance of a site certificate. For each fiscal year, upon
approval of the department's budget authorization by a regular
session of the Legislative Assembly or as revised by the
Emergency Board, the director promptly shall enter an order
establishing an annual fee based on the amount of revenues that
the director estimates is needed to fund the cost of assuring
that the facility is being operated consistently with the terms
and conditions of the site certificate and any applicable health
or safety standards. In determining this cost, the director shall
include both the actual direct cost to be incurred by the council
and the department to assure that the facility is being operated
consistently with the terms and conditions of the site
certificate and any applicable health or safety standards, and
the general costs to be incurred by the council and the
department to assure that all certificated facilities are being
operated consistently with the terms and conditions of the site
certificates and any applicable health or safety standards that
cannot be allocated to an individual, licensed facility. Not more
than 20 percent of the annual fee charged each facility shall be
for the recovery of these general costs. The fees for direct
costs shall reflect the size and complexity of the facility and
its certificate conditions.
(6) Each holder of a site certificate executed after July 1 of
any fiscal year shall pay a fee for the remaining portion of the
year. The amount of the fee shall be set at the cost of
regulating the facility during the remaining portion of the year
determined in the same manner as the annual fee.
(7) When the actual costs of regulation incurred by the council
and the department for the year, including that portion of the
general regulation costs that have been allocated to a particular
facility, are less than the annual fees for that facility, the
unexpended balance shall be refunded to the site certificate
holder. When the actual regulation costs incurred by the council
and the department for the year, including that portion of the
general regulation costs that have been allocated to a particular
facility, are projected to exceed the annual fee for that
facility, the director may issue an order revising the annual
fee.
(8) In addition to any other fees required by law, each energy
resource supplier shall pay to the department annually its share
of an assessment to fund the activities of the department,
determined by the director in the following manner:
(a) Upon approval of the department's budget authorization by a
regular session of the Legislative Assembly, the director shall
promptly enter an order establishing the amount of revenues
required to be derived from an assessment pursuant to this
subsection in order to fund the activities of the department,
including those enumerated in ORS 469.030 and others authorized
by law, for the first fiscal year of the forthcoming biennium. On
or before June 1 of each even-numbered year, the director shall
enter an order establishing the amount of revenues required to be
derived from an assessment pursuant to this subsection in order
to fund the activities of the department, including those
enumerated in ORS 469.030 and others authorized by law, for the
second fiscal year of the biennium which order shall take into
account any revisions to the department's biennial budget made by
the Emergency Board or by a special session of the Legislative
Assembly subsequent to the most recently concluded regular
session of the Legislative Assembly.
(b) Each order issued by the director pursuant to paragraph (a)
of this subsection shall allocate the aggregate assessment set
forth therein to energy resource suppliers in accordance with
paragraph (c) of this subsection.
(c) The amount assessed to an energy resource supplier shall be
based on the ratio which that supplier's annual gross operating
revenue derived within this state in the preceding calendar year
bears to the total gross operating revenue derived within this
state during that year by all energy resource suppliers. The
assessment against an energy resource supplier shall not exceed
five-tenths of one percent of the supplier's gross operating
revenue derived within this state in the preceding calendar year.
The director shall exempt from payment of an assessment any
individual energy resource supplier whose calculated share of the
annual assessment is less than $250.
(d) The director shall send each energy resource supplier
subject to assessment pursuant to this subsection a copy of each
order issued, by registered or certified mail. The amount
assessed to the energy resource supplier pursuant to the order
shall be considered to the extent otherwise permitted by law a
government-imposed cost and recoverable by the energy resource
supplier as a cost included within the price of the service or
product supplied.
(e) The amounts assessed to individual energy resource
suppliers pursuant to paragraph (c) of this subsection shall be
paid to the department as follows:
(A) Amounts assessed for the first fiscal year of a biennium
shall be paid not later than 90 days following the close of the
regular session of the Legislative Assembly; and
(B) Amounts assessed for the second fiscal year of a biennium
shall be paid not later than July 1 of each even-numbered year.
(f) An energy resource supplier shall provide the director, on
or before May 1 of each year, a verified statement showing its
gross operating revenues derived within the state for the
preceding calendar year. The statement shall be in the form
prescribed by the director and is subject to audit by the
director. The statement shall include an entry showing the total
operating revenue derived by petroleum suppliers from fuels sold
that are subject to the requirements of section 3, Article IX of
the Oregon Constitution, ORS 319.020 with reference to aircraft
fuel and motor vehicle fuel, and ORS 319.530. The director may
grant an extension of not more than 15 days for the requirements
of this subsection if:
(A) The energy supplier makes a showing of hardship caused by
the deadline;
(B) The energy supplier provides reasonable assurance that the
energy supplier can comply with the revised deadline; and
(C) The extension of time does not prevent the department from
fulfilling its statutory responsibilities.
(g) As used in this section:
(A) 'Energy resource supplier' means an electric utility,
natural gas utility or petroleum supplier supplying electricity,
natural gas or petroleum products in Oregon.
(B) 'Gross operating revenue' means gross receipts from sales
or service made or provided within this state during the regular
course of the energy supplier's business, but does not include
either revenue derived from interutility sales within the state
or revenue received by a petroleum supplier from the sale of
fuels that are subject to the requirements of section 3, Article
IX of the Oregon Constitution, ORS 319.020 or 319.530.
(C) 'Petroleum supplier' has the meaning given that term in ORS
469.020.
(h) In determining the amount of revenues which must be derived
from any class of energy resource suppliers by assessment
pursuant to this subsection, the director shall take into account
all other known or readily ascertainable sources of revenue to
the department, including, but not limited to, fees imposed under
this section and federal funds, and may take into account any
funds previously assessed pursuant to ORS 469.420 (1979
Replacement Part) or section 7, chapter 792, Oregon Laws 1981.
(i) Orders issued by the director pursuant to this section
shall be subject to judicial review under ORS 183.484. The taking
of judicial review shall not operate to stay the obligation of an
energy resource supplier to pay amounts assessed to it on or
before the statutory deadline.
(9)(a) In addition to any other fees required by law, each
operator of a nuclear fueled thermal power plant or nuclear
installation within this state shall pay to the department
annually on July 1, an assessment in an amount determined by the
director to be necessary to fund the activities of the state and
the counties associated with emergency preparedness for a nuclear
fueled thermal power plant or nuclear installation. The
assessment shall not exceed $461,250 per year. Moneys collected
as assessments under this subsection are continuously
appropriated to the department for this purpose.
(b) The department shall maintain and shall cause other state
agencies and counties to maintain time and billing records for
the expenditure of any fees collected from an operator of a
nuclear fueled thermal power plant under paragraph (a) of this
subsection.
(10) Reactors operated by a college, university or graduate
center for research purposes and electric utilities not connected
to the Northwest Power Grid are exempt from the fee requirements
of subsections (5), (8) and (9) of this section.
(11)(a) All fees assessed by the director against holders of
site certificates for facilities that have an installed capacity
of 500 megawatts or greater may be paid in several installments,
the schedule for which shall be negotiated between the director
and the site certificate holder.
(b) Energy resource suppliers or applicants or holders of a
site certificate who fail to pay a fee provided under subsections
(1) to (9) of this section or the fees required under ORS 469.360
after it is due and payable shall pay, in addition to that fee, a
penalty of two percent of the fee a month for the period that the
fee is past due. Any payment made according to the terms of a
schedule negotiated under paragraph (a) of this subsection shall
not be considered past due. The director may bring an action to
collect an unpaid fee or penalty in the name of the State of
Oregon in a court of competent jurisdiction. { - The director
shall be entitled to recover all costs and attorney fees
connected with the action. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this subsection. + }
(12) The provisions of ORS 293.445 shall not apply to any fee
or assessment paid under ORS chapter 469.
SECTION 75. ORS 474.085 is amended to read:
474.085. (1) Any party to a wholesale distribution agreement
aggrieved by a violation of any provision of ORS 474.005 to
474.095 shall be entitled to:
(a) Injunctive relief enjoining the violation; and
(b) Recovery for damages caused by the violation.
(2) { - The party is entitled to reasonable attorney fees and
costs at trial and on appeal. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
(3) If the violation consists of a termination, cancellation,
refusal to renew or refusal to permit a transfer of the
wholesaler's business in contravention of ORS 474.005 to 474.095,
damages shall include the decrease in the value of the
wholesaler's business caused by the violation, including any
decrease attributable to the loss of good will, less any
mitigation.
SECTION 76. ORS 478.965 is amended to read:
478.965. (1) If the fire-fighting apparatus or personnel, or
either of a district, are required to respond and be used
actively or on a standby basis in connection with the
extinguishment or control of a fire that has been started or
allowed to spread in willful violation of ORS 478.960 (1) to (5),
the person responsible therefor shall be liable to the district
furnishing such apparatus or personnel, or both, for the actual
costs incurred by the district in controlling, extinguishing or
patrolling the fire. Such costs may be recovered in an action
prosecuted in the name of the district. { - If the district
prevails in such action, there shall be taxed and allowed to the
district, at trial and on appeal, a reasonable amount to be fixed
by the court as attorney fees for the prosecution of the
action. - } { + The court may award reasonable attorney fees to
the prevailing party in an action under the provisions of this
section. + }
(2) An itemized statement of the actual costs incurred by the
district, certified under oath by the treasurer of the district,
shall be accepted as prima facie evidence of such costs in the
action authorized by this section.
SECTION 77. ORS 479.265 is amended to read:
479.265. Any purchaser or transferee of a dwelling unit who is
aggrieved by a violation of ORS 479.260 may bring an individual
action in an appropriate court to recover actual damages or $50,
whichever is greater. In any action brought by a person under
this section, the court may award { + to the prevailing
party + }, in addition to the relief provided in this section,
reasonable attorney fees at trial and on appeal and costs.
Actions brought under this section shall be commenced within one
year of the date of sale or transfer. Notwithstanding the
provisions of this section, violation of ORS 479.260 shall not
affect the transfer of the title or possession of the dwelling
unit.
SECTION 78. ORS 480.600 is amended to read:
480.600. (1) The permit fee established under ORS 480.510 to
480.665, for a quantity of pressure vessels available for
inspection at the same location, shall be fixed by the board at
cost, in accordance with the time required to conduct the
inspection and the inspector's mileage to the place of
inspection. However, in no case shall the total payment be more
than the total of the individual pressure vessel fees fixed by
ORS 480.510 to 480.665.
(2) The owner or user of any vessel which is to be inspected
during the inspection period under the provisions of ORS 480.570
shall pay to the Department of Consumer and Business Services a
special permit fee of $25, except that the department may require
payment of a permit fee as provided in ORS 480.595 where it finds
the vessel to be in violation of the minimum safety standards
during the inspection period. In addition, for a quantity of
pressure vessels inspected at the same location, the board may
establish a different special permit fee which recognizes the
lower costs of handling, but in no such case shall the total
payment be more than the total of individual pressure vessel fees
fixed by ORS 480.510 to 480.665.
(3) If there is a lengthened inspection interval under ORS
480.560 (2), the permit fee interval shall be lengthened
correspondingly.
(4) Whenever an insurance company notifies its insured that it
will no longer insure a boiler or pressure vessel, or that
insurance on a boiler or pressure vessel is no longer in force,
the insurance company shall also notify the chief boiler
inspector, in a form and manner prescribed by the chief boiler
inspector, of the description and vessel registration numbers of
the boilers or pressure vessels for which insurance is canceled
or suspended or is not to be renewed.
(5) Whenever an owner or user of a boiler or pressure vessel
fails to pay any fee required by this chapter within 60 days
after the date of depositing written notification in the United
States mail, postage prepaid, and addressed to the last-known
address of the owner or user, the fee shall be considered
delinquent and the fee shall be doubled. { - If court action is
taken the department shall be awarded by the court or judge a
reasonable attorney fee at trial and on appeal, in addition to
its costs and disbursements, if it prevails. - } { + The court
may award reasonable attorney fees to the prevailing party in any
action to collect a fee required by this chapter. + }
SECTION 79. ORS 527.665 is amended to read:
527.665. (1) In any transaction for the conveyance of an
ownership interest in forestland, the transferor must provide to
the transferee, prior to the date of execution of the conveyance,
written notice of any reforestation requirements imposed upon the
land pursuant to the Oregon Forest Practices Act.
(2) The failure of the transferor to comply with subsection (1)
of this section does not invalidate an instrument of conveyance
executed in the transaction. However, for any such failure the
transferee may bring against the transferor an appropriate action
to recover the costs of complying with the reforestation
requirements. { - If the transferee prevails in any such
action, the transferee is entitled to costs and disbursements and
reasonable attorney fees at trial and on appeal. - } { + The
court may award reasonable attorney fees to the prevailing party
in an action brought under the provisions of this section. + }
SECTION 80. ORS 540.120 is amended to read:
540.120. (1) If one or more of the water users concerned in a
distribution or division under ORS 540.100 pay the wages and
expenses for another user who fails to contribute a just share or
proportion of the wages and expenses, the user paying the wages
and expenses shall be entitled to a lien upon the lands of the
delinquent user entitled to use of water, in the amount of the
delinquent user's just share or proportion.
(2) The lien shall be made effective by filing written notice
of intent to claim a lien for payment of wages and expenses under
subsection (1) of this section with the county clerk of the
county in which the lands of the delinquent water user are
situated.
(3) The notice of intent filed under subsection (2) of this
section shall:
(a) Be verified by the watermaster or assistant watermaster;
(b) Specify the particular items of wages and expenses for
which the lien is claimed;
(c) Describe the lands of each water user upon which the lien
is claimed; and
(d) State the name of the owner or reputed owner of the lands.
(4) The lien shall be filed within 60 days from the completion
of the distribution or division, and suit to foreclose the lien
shall be brought in the circuit court of the county in which the
lands or any part of the lands are situated, within six months
from the date of filing the notice of lien.
(5) { - If suit is necessary to foreclose the lien, the
plaintiff may recover reasonable attorney fees at trial and on
appeal in addition to the costs and disbursements prescribed by
law. - } The lien shall be foreclosed in the manner provided by
law for the foreclosure of liens against real property. { + The
court may award reasonable attorney fees to the prevailing party
in an action to foreclose a lien under this section. + }
(6) A lien filed under this section shall not be considered an
exclusive remedy.
SECTION 81. ORS 540.250 is amended to read:
540.250. (1) If not paid, the lien under ORS 540.240 may be
made effective by the assistant filing a notice in writing of
intention to claim a lien for the assistant's wages and expense
with the county clerk of the county in which the ditch, pipeline
or reservoir and lands are situated.
(2) The notice filed under subsection (1) of this section
shall:
(a) Be verified and subscribed by the watermaster or assistant;
(b) Specify the particular items of wages and expense for which
the lien is claimed;
(c) Describe the lands of each water user upon which the lien
is claimed; and
(d) Set forth the name of the ditch, pipeline or reservoir and
the name of the owner or reputed owner of the lands and ditch,
pipeline or reservoir against which the lien is claimed.
(3) The lien shall be filed within 60 days from the completion
of distribution. Suit to foreclose the lien shall be brought in
the circuit court of the county in which all or part of the
lands, ditch, pipeline or reservoir, or any part, are situated,
within six months from the date of filing the notice.
(4) { - If suit is necessary to foreclose the lien, the
plaintiff shall be allowed to recover a reasonable attorney fee
at trial and on appeal in addition to the costs and disbursements
prescribed by law. - } The lien shall be foreclosed in the
manner provided by law for the foreclosure of liens against real
property. { + The court may award reasonable attorney fees to
the prevailing party in an action to foreclose a lien under this
section. + }
SECTION 82. ORS 545.104 is amended to read:
545.104. (1) Any person or irrigation district who shall supply
water to any person or irrigation district for irrigation of
crops shall, upon complying with subsection (2) of this section,
have a lien upon all crops raised by the use of such water for
the reasonable value of the water supplied as of the date when
the water was first supplied for the crops. The lien shall be a
continuing one and shall bind the crops after, as well as before,
they have been gathered, and shall be preferred to all other
liens or encumbrances upon the crops, except mortgages given to
the state for the purchase of seed wheat.
(2) The person or irrigation district so supplying water,
within 40 days after the water has been furnished, or within 40
days after the close of the irrigation season, shall file with
the county clerk of the county in which the lands, or some part
thereof, are situated and where such water has been furnished, a
claim containing a true statement of the account due for such
water after deducting all just credits and offsets; the date when
the water was first supplied; the name of the owner of the crops,
or reputed owner, if known; the name of the person to whom the
water was furnished; and a description of the lands upon which
the crops were grown sufficient for identification. The claim
shall be verified by oath of some person having knowledge of the
facts and shall be filed with and recorded by the county clerk in
the book kept for the purpose of recording liens claimed under
ORS 87.035. The record shall be indexed as deeds and other
conveyances are required by law to be indexed, and the clerk
shall receive the same fees as required by law for recording
deeds and other instruments.
(3) The lien may be enforced by a suit in equity, { - and
upon decree of foreclosure the court shall allow a reasonable sum
as attorney fees at trial and on appeal; - } but this remedy
shall not be deemed to abrogate any other remedy provided by law
for the collection of dues, charges or assessment for water
furnished. { + The court may award reasonable attorney fees to
the prevailing party in an action to foreclose a lien under this
section. + }
(4) If the crop, or any part thereof, has been sold prior to
the filing of the lien, or possession delivered to an agent,
broker, cooperative agency or other person to be sold or
otherwise disposed of, and its identity lost or destroyed, or the
crop commingled with its like kind so that it cannot be
segregated, and if the purchaser, agent, broker, cooperative
agency or other person was notified of the filing of the lien by
being furnished with a certified copy thereof, then the lien
shall attach to the proceeds of sale remaining in the possession
of the purchaser, agent, broker, cooperative agency or other
person at the time of the notice, and shall be as effective
against the proceeds as against the crop itself.
SECTION 83. ORS 545.502 is amended to read:
545.502. { + (1) + } Immediately, or at any time after the
delinquency date fixed by the board of directors and upon the
filing of the notice of claim of lien under ORS 545.494, the
board by resolution may direct that all delinquent charges and
assessments then unpaid, whether for operation and maintenance,
construction, bond or interest, or other purpose, shall be
foreclosed by the district. The foreclosure shall follow the
general procedure of a suit in equity, and shall be filed in the
circuit court for the county in which the land to be foreclosed
is situated. If land in two or more counties is to be foreclosed,
separate proceedings shall be commenced in each county as to the
lands therein. In addition to such charges and assessments being
foreclosed, the district may recover in the suit the costs and
disbursements and expenses of foreclosure, including but not
limited to recording and filing fees, title search fees,
foreclosure reports and a reasonable administrative fee { - ,
together with a reasonable sum as attorney fee at trial and on
appeal to be allowed by the court - } . Any number of tracts of
land, whether they are delinquent for the same or different
charges or assessments, or for the same or several years, may be
foreclosed in the same suit. The decree shall order the sale of
the property and fix the time for holding the sale, which shall
not be more than four weeks from the date of the decree, and
shall order the sheriff of the county to hold the same as other
foreclosure sales upon giving notice thereof for two consecutive
weeks prior to the day of sale by publication of notice once each
week in a newspaper published in the county in which the land to
be sold is situated, and by posting notices in three public and
conspicuous places within the county at least two weeks prior to
the day of sale. The irrigation district may be a bidder and
purchaser of the property upon the sale. Upon the sale the
sheriff shall issue deed to the property immediately. No right of
redemption thereafter shall exist.
{ + (2) The court may award reasonable attorney fees to the
prevailing party in a foreclosure action under this section. + }
SECTION 84. ORS 548.620 is amended to read:
548.620. The irrigation or drainage district may, at any time
after the expiration of one year from the first date of
delinquency of any tax included in such certificate of
delinquency, foreclose the same in the manner provided by the
general laws of the state for the foreclosure of delinquency
certificates by individuals. The district may include in one
foreclosure suit and may foreclose by that suit as many
certificates of delinquency as it may hold. The holder of such
certificate may recover as a part of the judgment the costs,
disbursements and expenses in such foreclosure { - , including a
reasonable attorney fee at trial and on appeal as determined by
the court - } . { + The court may award reasonable attorney fees
to the prevailing party in a foreclosure action under this
section. + }
SECTION 85. ORS 548.660 is amended to read:
548.660. In any such suit the irrigation or drainage district
shall be entitled to recover, as a part of the moneys to be paid
therein, { - such sum as the court may adjudge reasonable as
attorney fees at trial and on appeal, and - } any payment
required for the issuance of the certificate. { + The court may
award reasonable attorney fees to the prevailing party in the
proceeding. + } { - Such sums - } { + Amounts awarded to the
district + } shall be a lien upon the property.
SECTION 86. ORS 553.560 is amended to read:
553.560. (1) After the date fixed as the time when an
assessment shall become due, the board, by resolution, shall
direct that all delinquent assessments then unpaid, whether for
operation and maintenance, improvement, construction, or other
purposes, shall be foreclosed by the district. Such foreclosure
shall follow the general procedures of a suit in equity and shall
be filed in the circuit court of the county in which the land to
be foreclosed is situated. If land in two or more counties is to
be foreclosed, separate proceedings shall be commenced in each
county as to the lands therein. The district may recover in such
suit the costs and disbursements and other expenses of
foreclosure { - , together with a reasonable sum as attorney
fees at trial and on appeal to be allowed by the court - } . Any
number of tracts of lands, whether they are delinquent for the
same or any number of assessments or for the same or several
years, may be foreclosed in the same suit. { + The court may
award reasonable attorney fees to the prevailing party in the
suit. + }
(2) The decree in such suit shall order the sale of such
property and fix the time for holding the sale, which shall be
not more than four weeks from the date of the decree, and shall
order the sheriff of the county to hold the same as other
foreclosure sales, upon giving notice thereof for two consecutive
weeks prior to the day of sale, by publication of notice once
each week in a newspaper published in the county in which the
land to be sold is situated and by posting notices in three
public and conspicuous places in the county at least two weeks
prior to the day of sale.
(3) The district may be a bidder and purchaser of property upon
such sale. Upon such sale the sheriff immediately shall issue a
deed to the property sold, and no right of redemption shall
exist.
SECTION 87. ORS 554.140 is amended to read:
554.140. (1) The board of directors shall institute proceedings
to enforce the lien of any assessment when the last installment
of such assessment is delinquent for more than three months. If
the board fails to promptly institute and diligently prosecute in
good faith proceedings for enforcement of a lien after that time
and any member or creditor of the corporation shall give written
notice to the board of such delinquency and request that such
procedure be instituted and the board neglects for 30 days
thereafter in good faith to bring suit to enforce the lien, the
members of the board so failing shall each be jointly and
severally liable to the corporation in the amount of the
delinquent assessment.
(2) Any member or creditor of the corporation may bring an
action on behalf of the corporation in its name against any such
directors to enforce the payment thereof; however, no directors
shall be personally liable for payment of a delinquent assessment
if:
(a) The record of proceedings of a duly constituted meeting of
the board held prior to the commencement of such action show
either that such director presented or voted in favor of a
resolution presented and voted upon by the board calling for the
prompt commencement of such enforcement proceedings; or
(b) If no meeting of the board was held between the time
prescribed for enforcement of a delinquent assessment lien and
the commencement of an action against the directors by a member
or creditor of the corporation, that such director duly requested
a special meeting of the board of directors be called for the
purpose of adopting such a resolution and that the proposed
resolution was submitted with the request.
(3) In any legal proceeding instituted by the board of
directors of the corporation as provided in this section, the
court { - shall allow - } { + may award to the prevailing
party + }, in addition to the costs and disbursements of such
proceedings, a reasonable attorney fee at trial and on appeal
{ - to the corporation if it prevails - } .
SECTION 88. ORS 583.126 is amended to read:
583.126. (1) Producers have the right as set out in but not
limited to the provisions of ORS 583.086, either individually or
through agents, to file with the department information, facts,
figures and material relating to the handling of their milk, the
audits thereof and practices or problems which may affect such
milk or payment therefor, under the provisions of ORS 583.007,
583.016 and 583.046 to 583.166.
(2) No handler shall engage in any of the following unfair
practices:
(a) Interfere with, restrain or coerce producers in the
exercise of their rights under subsection (1) of this section.
(b) Terminate an agreement or threaten to terminate an
agreement relating to handling or sale of milk or payment
therefor, or refuse to accept milk from a producer because such
producer has exercised rights and privileges as set out under
subsection (1) of this section.
(3) The department, as authorized by ORS 583.007, 583.016 and
583.046 to 583.166, shall, in the course of auditing, review and
investigate all unfair practices as provided by subsection (2) of
this section coming to its attention and shall in audit or
reaudit findings make a finding of fact and a determination
relative to such practices. Such audit findings shall be subject
to review and appeal by producers and handlers as otherwise
provided in ORS 583.007, 583.016 and 583.046 to 583.166.
(4) In addition to other remedies provided by ORS 583.007,
583.016 and 583.046 to 583.166 or other law, any producer injured
by any violation of the provisions of this section may maintain
an action for damages in a circuit court. { - In addition to
damages, the plaintiff in the action is entitled to recover the
costs of the action and a reasonable attorney fee at trial and on
appeal. - } { + The court may award reasonable attorney fees to
the prevailing party in an action under this section. + }
SECTION 89. ORS 583.146 is amended to read:
583.146. In legal proceedings filed under ORS 583.096, 583.106
or 583.136, the { - department is entitled to recover, in
addition to costs, such sum as the court or judge may adjudge
reasonable as attorney fees at trial and on appeal - }
{ + court may award reasonable attorney fees to the prevailing
party + }. { - Such - } { + Any + } attorney fees
{ + awarded to the department + } shall be deposited by and used
by the department as authorized under ORS 583.166. If the
department does not prevail in such legal proceedings, it shall
pay the costs, disbursements and reasonable attorney fees at
trial and on appeal, as adjudged by the court, of the prevailing
party from the moneys in the Department of Agriculture Account.
SECTION 90. ORS 585.150 is amended to read:
585.150. (1) The department shall enforce the provisions of ORS
585.010 to 585.220, and to that end the department has the
authority granted in this section.
(2) The department may investigate and attempt equitably to
adjust controversies between any grower or growers, and any
wholesale produce dealer, retail produce peddler, or any person
acting or assuming to act in the capacity of any of such persons.
(3) The department may take assignments of claims, arising out
of any controversies between the parties named in subsection (2)
of this section, in trust for the assigning grower or growers.
All such assignments shall run to the Director of Agriculture and
successors in office. The Director of Agriculture may, as
assignee of any such claim, sue any of the persons mentioned in
subsection (2) of this section or any combination of such persons
{ - , and, in case such suit or action is brought by the
director, the director is entitled to recover, in addition to
costs and disbursements, the sum the court or judge adjudges
reasonable as attorney fees at trial and on appeal - } . { +
+ }The director shall not bring a suit or action on any claim
until the parties to be sued have been notified of the assignment
of claims and have been given a reasonable opportunity to make an
equitable adjustment thereof with the department. Any claim so
assigned to the director authorizes the director to make any
adjustment thereof which, in the opinion of the director, is
equitable. The moneys received by the department on any claims so
assigned to it shall be paid into the Department of Agriculture
Account; and such moneys shall be paid to the assignor after
first deducting any costs and expenses incurred by the department
in the collection of any such claim, and also after deducting
five percent of any sum collected. The five percent deducted
shall be used, together with other moneys collected under the
provisions of ORS 585.010 to 585.220, to pay the expenses in the
administration of ORS 585.010 to 585.220.
(4) The Director of Agriculture may make complaint in a
criminal action for any violation of any provision of ORS 585.010
to 585.220 which constitutes a crime. The director shall
prosecute all legal proceedings in official capacity, but in the
name of the State of Oregon. The director may act through any
authorized officer, employee or deputy of the department in any
proceeding authorized by this section.
{ + (5) The court may award reasonable attorney fees to the
prevailing party in an action under subsection (3) of this
section. + }
SECTION 91. ORS 618.516 is amended to read:
618.516. (1) Any person who purchases or leases goods or
services and thereby suffers any ascertainable loss of money or
property, real or personal, as a result of a willful security
seal violation may bring an individual action in an appropriate
court to recover actual damages or $200, whichever is greater.
The court or the jury, as the case may be, may award punitive
damages and the court may provide such equitable relief as it
considers necessary or proper.
(2) Upon commencement of any action brought under subsection
(1) of this section, the clerk of the court shall mail a copy of
the complaint or other initial pleading to the Attorney General
and, upon entry of any judgment or decree in the action, shall
mail a copy of such judgment or decree to the Attorney General.
(3) In any action brought by a person under this section, the
court may award { - , in addition to the relief provided in this
section, - } { + to the prevailing party + } reasonable
attorney fees at trial and on appeal and costs.
(4) Any permanent injunction or final judgment or order of the
court made under ORS 618.506 or 618.511 is prima facie evidence,
in an action brought under this section, that the respondent
committed a security seal violation, but an assurance of
voluntary compliance, whether or not approved by the court, shall
not be evidence of such violation.
(5) Actions brought under this section shall be commenced
within one year from the discovery of the security seal
violation. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish security seal
violations, the running of the statute of limitations with
respect to every private right of action under this section and
based in whole or in part on any matter complained of in the
proceeding shall be suspended during the pendency thereof.
SECTION 92. ORS 621.246 is amended to read:
621.246. If a producer is damaged by an inaccurate weighing,
sampling or testing of milk or cream by a licensee or by the
inaccurate recording of the results of any test, the producer may
{ - , if action or suit is brought therefor, in addition to
damages, recover a reasonable attorney fee at trial and on appeal
to be fixed by the court - } { + bring an action for those
damages. + } { + The court may award reasonable attorney fees to
the prevailing party in an action under this section. + }
SECTION 93. ORS 645.225 is amended to read:
645.225. (1) Whenever it appears to the director that a person
has engaged in an act or practice constituting a violation of any
provision of this chapter or any rule or order of the director,
the director may bring an action in the name and on behalf of the
State of Oregon in any circuit court of this state to enjoin the
acts or practices and to enforce compliance with this chapter or
such rule or order. Upon a proper showing, a permanent or
temporary injunction, restraining order or writ of mandamus shall
be granted. If the court finds that the defendant has violated
any provision of this chapter or any such rule or order, the
court may appoint a receiver, who may be the director, for the
defendant or the defendant's assets. The court may not require
the director to post a bond. { - If the director prevails, the
director shall be entitled to costs and reasonable attorney fees
at trial and on appeal to be fixed by the court. - } { + The
court may award reasonable attorney fees to the prevailing party
in an action under this section. + }
(2) The director may include in any action authorized by
subsection (1) of this section:
(a) A claim for restitution on behalf of persons injured by the
act or practice constituting the subject matter of the action;
and
(b) A claim for disgorgement of illegal gains or profits
derived.
(3) Any recovery under subsection (2) of this section shall be
turned over to the General Fund of the State Treasury unless the
court requires other disposition.
SECTION 94. ORS 646.140 is amended to read:
646.140. (1) Any person injured by any violation, or who will
suffer injury from any threatened violation, of ORS 646.010 to
646.180 may maintain an action in any court of general equitable
jurisdiction of this state, to prevent, restrain or enjoin the
violation or threatened violation. If in such action, a violation
or threatened violation of ORS 646.010 to 646.180 is established,
the court shall enjoin and restrain or otherwise prohibit such
violation or threatened violation, and the plaintiff in the
action is entitled to recover three-fold the damages sustained by
the plaintiff { - , and the costs of suit and a reasonable
attorney fee at trial and on appeal - } . { + The court may
award reasonable attorney fees to the prevailing party in an
action under this section. + }
(2) Actions brought under this section shall be commenced
within four years from the date of the injury.
SECTION 95. ORS 646.240 is amended to read:
646.240. (1) The Attorney General may bring an action in the
name of the state against any mail agent for violation of ORS
646.225 or 646.229. Upon proof by a preponderance of the evidence
of a violation of ORS 646.225 or 646.229, a mail agent shall
forfeit and pay a civil penalty of not more than $1,000 for an
initial violation. For a second or subsequent violation, the mail
agent shall forfeit and pay a civil penalty of not more than
$5,000 for each violation.
(2) The Attorney General may bring an action in the name of the
state against any mail agent or other person or entity to
restrain or prevent any violation of ORS 646.225 or 646.229.
(3) { - If the state prevails in whole or part in any action
brought by the Attorney General under this section, the Attorney
General shall be entitled to reasonable attorney fees and costs
of investigation, preparation and litigation. - } { + The court
may award reasonable attorney fees and costs of investigation,
preparation and litigation to the prevailing party in an action
under this section. + }
SECTION 96. ORS 646.359 is amended to read:
646.359. (1) If a consumer appeals to a court from a decision
resulting from the informal dispute settlement procedure
established by ORS 646.355 because the consumer was not granted
one of the remedies specified in ORS 646.335 (1), and the
consumer is granted one of the specified remedies by the court,
the consumer shall also be awarded up to three times the amount
of any damages { - , together with reasonable attorney fees and
costs, - } if the court finds that the manufacturer did not act
in good faith in the dispute settlement procedure.
(2) If a consumer brings an action under ORS 646.315 to 646.375
against a manufacturer who has not established informal dispute
settlement procedures and the consumer is granted one of the
remedies specified in ORS 646.335 (1), the consumer shall also be
awarded three times the amount of the damages { - , plus
attorney fees and costs - } .
{ + (3) The court may award reasonable attorney fees to the
prevailing party in an appeal or action under this section. + }
SECTION 97. ORS 646.632 is amended to read:
646.632. (1) A prosecuting attorney who has probable cause to
believe that a person is engaging in, has engaged in, or is about
to engage in an unlawful trade practice may bring suit in the
name of the State of Oregon in the appropriate court to restrain
such person from engaging in the alleged unlawful trade practice.
(2) Except as provided in subsections (5) and (6) of this
section, before filing a suit under subsection (1) of this
section, the prosecuting attorney shall in writing notify the
person charged of the alleged unlawful trade practice and the
relief to be sought. Such notice shall be served in the manner
set forth in ORS 646.622 for the service of investigative
demands. The person charged thereupon shall have 10 days within
which to execute and deliver to the prosecuting attorney an
assurance of voluntary compliance. Such assurance shall set forth
what actions, if any, the person charged intends to take with
respect to the alleged unlawful trade practice. The assurance of
voluntary compliance shall not be considered an admission of a
violation for any purpose. If the prosecuting attorney is
satisfied with the assurance of voluntary compliance, it may be
submitted to an appropriate court for approval and if approved
shall thereafter be filed with the clerk of the court. If an
approved assurance of voluntary compliance provides for the
payment of an amount of money, as restitution or otherwise, and
if the amount is not paid within 90 days of the date the court
approves the assurance, or, if the assurance of voluntary
compliance requires periodic payments and if any periodic payment
is not paid within 30 days of the date specified in the assurance
of voluntary compliance for any periodic payment, then the
prosecuting attorney may submit that portion of the assurance of
voluntary compliance which provides for the payment of money to
the court with a certificate stating the unpaid balance in a form
which fully complies with the requirements of ORCP 70. Upon
submission of an assurance of voluntary compliance under this
subsection, the court shall sign the assurance of voluntary
compliance and it shall be entered in the register and docketed
in the judgment docket. The assurance of voluntary compliance
shall thereupon constitute a judgment in favor of the State of
Oregon and shall be due and payable. Any money judgment docketed
pursuant to this section shall be enforceable as a judgment in a
civil action, as provided in ORS 18.320, 18.350, 18.360 and
18.400. The notice of the prosecuting attorney under this
subsection shall not be deemed a public record until the
expiration of 10 days from the service of the notice.
(3) The prosecuting attorney may reject as unsatisfactory any
assurance:
(a) Which does not contain a promise to make restitution in
specific amounts or through arbitration for persons who suffered
any ascertainable loss of money or property as a result of the
alleged unlawful trade practice; or
(b) Which does not contain any provision, including but not
limited to the keeping of records, which the prosecuting attorney
reasonably believes to be necessary to insure the continued
cessation of the alleged unlawful trade practice, if such
provision was included in a proposed assurance attached to the
notice served pursuant to this section.
(4) Violation of any of the terms of an assurance of voluntary
compliance which has been approved by and filed with the court
shall constitute a contempt of court.
(5) The prosecuting attorney need not serve notice pursuant to
subsection (2) of this section before filing a suit if, within
two years of the filing of such suit, the person charged with the
alleged unfair trade practice submitted to any prosecuting
attorney an assurance of voluntary compliance which was accepted
by and filed with an appropriate court. The prosecuting attorney
shall in such case serve notice on the defendant in the manner
set forth in ORS 646.622 for the service of investigative
demands, on the 10th or earlier day previous to the filing of
suit.
(6) If the prosecuting attorney alleges that the prosecuting
attorney has reason to believe that the delay caused by complying
with the provisions of subsection (2) or (5) of this section
would cause immediate harm to the public health, safety or
welfare, the prosecuting attorney may immediately institute a
suit under subsection (1) of this section.
(7) A temporary restraining order may be granted without prior
notice to the person if the court finds there is a threat of
immediate harm to the public health, safety or welfare. Such a
temporary restraining order shall expire by its terms within such
time after entry, not to exceed 10 days, as the court fixes,
unless within the time so fixed the order, for good cause shown,
is extended for a like period or unless the person restrained
consents that it may be extended for a longer period.
(8) { + The court may award reasonable attorney fees and the
reasonable costs of investigation, preparation and litigation to
the prevailing party in an action under this section. + }
{ - The court may award reasonable attorney fees at trial and on
appeal to the prevailing party in a suit brought under this
section. If the defendant prevails in such suit and the court
finds that the defendant had in good faith submitted to the
prosecuting attorney a satisfactory assurance of voluntary
compliance prior to the institution of the suit or that the
prosecuting attorney, in a suit brought under subsections (5) and
(6) of this section, did not have reasonable grounds to proceed
under those subsections, the court shall award reasonable
attorney fees at trial and on appeal to the defendant. If the
state prevails, the reasonable expenses of investigation,
preparation and prosecution shall be taxed against the defendant,
upon application of the prosecuting attorney, in the same manner
as costs are taxed and shall be in addition thereto. - }
SECTION 98. ORS 646.638 is amended to read:
646.638. (1) Except as provided in subsection (7) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be,
may award punitive damages and the court may provide such
equitable relief as it deems necessary or proper.
(2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
(3) In any action brought by a person under this section, the
court may award { + reasonable attorney fees to the prevailing
party. + }
{ - , in addition to the relief provided in this section,
reasonable attorney fees at trial and on appeal and costs. If the
defendant prevails, the court may award reasonable attorney fees
at trial and on appeal and costs if it finds the action to be
frivolous. - }
(4) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
(5) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608, running of the statute of limitations with respect
to every private right of action under this section and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof.
(6) Notwithstanding subsection (5) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
(7) This section does not apply to any method, act or practice
described in ORS 646.608 (1)(w). Actions for violation of laws
relating to odometers are provided under ORS 815.410 and 815.415.
SECTION 99. ORS 646.641 is amended to read:
646.641. (1) Any person injured as a result of willful use or
employment by another person of an unlawful collection practice
may bring an action in an appropriate court to enjoin the
practice or to recover actual damages or $200, whichever is
greater. The court or the jury may award punitive damages, and
the court may provide such equitable relief as it deems necessary
or proper.
(2) In any action brought by a person under this section, the
court may award { + reasonable attorney fees to the prevailing
party. + }
{ - , in addition to the relief provided, reasonable attorney
fees at trial and on appeal and costs. If the defendant prevails,
the court may award reasonable attorney fees at trial and on
appeal and costs if it finds the action to be frivolous. - }
(3) Actions brought under this section shall be commenced
within one year from the date of the injury.
SECTION 100. ORS 646.642 is amended to read:
646.642. (1) Any person who willfully violates the terms of an
injunction issued under ORS 646.632 shall forfeit and pay to the
state a civil penalty to be set by the court of not more than
$25,000 per violation. For the purposes of this section, the
court issuing the injunction shall retain jurisdiction and the
cause shall be continued, and in such cases the prosecuting
attorney acting in the name of the state may petition for
recovery of civil penalties.
(2) Any person who willfully violates any provision of an
assurance of voluntary compliance approved and filed with an
appropriate court under ORS 646.632 shall forfeit and pay to the
state a civil penalty to be set by the court of not more than
$25,000 per violation. Any prosecuting attorney may apply to an
appropriate court for recovery of such civil penalty. In any
action brought by a prosecuting attorney under this section, and
in any contempt action brought by a prosecuting attorney pursuant
to ORS 646.632 (4), the court may award to the { - prosecuting
attorney - } { + prevailing party + }, in addition to any other
relief provided by law, reasonable attorney fees and costs at
trial and on appeal.
(3) In any suit brought under ORS 646.632, if the court finds
that a person is willfully using or has willfully used a method,
act or practice declared unlawful by ORS 646.607 or 646.608, the
prosecuting attorney, upon petition to the court, may recover, on
behalf of the state, a civil penalty to be set by the court of
not exceeding $25,000 per violation.
SECTION 101. ORS 646.760 is amended to read:
646.760. (1) The Attorney General may prosecute an action for
appropriate injunctive relief and civil penalties in the name of
the state for any violation of ORS 646.725 or 646.730. The court
may assess for the benefit of the state a civil penalty of not
more than $100,000 for each violation of ORS 136.617, 646.705 to
646.805 and 646.990. Any act or series of acts by one or more
individual persons (officers, agents or partners) on behalf of a
corporation or other business entity may be found to constitute a
violation or violations by such individual person or persons as
well as by the corporation or other business entity, and separate
penalties may be imposed against each of such individual
defendants and corporate or other business entity defendants for
such a violation. { - If the state prevails it shall also
recover its necessary - } { + The court may award to the
prevailing party in an action under this section + } reasonable
investigative costs { + , + } { - and - } reasonable experts'
fees and a reasonable attorney fee at trial and on appeal.
(2) The complaint may also seek and the court may order, in an
appropriate case, the forfeiture of any corporate franchise,
professional or business license, right to do business or to use
an assumed business name, where the court finds the use by any
defendant of such franchise, license or right has been material
to a violation of ORS 646.725 or 646.730.
(3) The court shall take into consideration in mitigation of
any penalty assessed under this section, any fine or penalty
imposed against the defendant by a United States court in a final
judgment under sections 1 to 45 of Title 15 of the United States
Code, which the court finds to be based on the same or
substantially the same acts of defendant.
SECTION 102. ORS 646.770 is amended to read:
646.770. Any person including the state or any municipal
corporation or political subdivision threatened with injury in
its business or property by a violation of ORS 646.725 or 646.730
may prosecute a suit for equitable relief, and in addition to
such relief shall recover the costs of suit, including necessary
reasonable investigative costs and reasonable experts' fees
{ - , and a reasonable attorney fee at trial and on appeal - } .
{ + The court may award reasonable attorney fees to the
prevailing party in a suit under this section. + }
SECTION 103. ORS 646.775 is amended to read:
646.775. (1)(a) The Attorney General may bring a civil action
in the name of the State of Oregon, as parens patriae on behalf
of natural persons residing in the state, in any circuit court in
which venue is proper under ORS 646.790, to secure equitable and
monetary relief as provided in this section for injury sustained
by such natural persons to their property by reason of a
violation of ORS 646.725 or 646.730.
(b) The court shall exclude from the amount of monetary relief
awarded in an action pursuant to paragraph (a) of this subsection
any amount of monetary relief (A) which duplicates amounts which
have been awarded for the same injury, or (B) which is properly
allocable to (i) natural persons who have excluded their claims
pursuant to subsection (2)(b) of this section, and (ii) any
business entity.
(c) The court shall award the state as monetary relief
threefold the total damages sustained, as described in paragraph
(b) of this subsection, and the costs of suit { + . + } { - ,
and a reasonable attorney fee at trial and on appeal. The amount
of such attorney fee, if any, shall be determined by the court.
The court may, in its discretion, award a reasonable attorney fee
at trial and on appeal to a prevailing defendant upon a finding
that the Attorney General acted in bad faith, vexatiously,
wantonly or for oppressive reasons. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
(2)(a) In any action pursuant to subsection (1)(a) of this
section, the Attorney General shall, at such times, in such
manner, and with such content as the court may direct, cause
notice thereof to be given by publication. If the court finds
that notice given solely by publication would deny due process of
law to any person or persons, the court may direct further notice
to such person or persons according to the circumstances of the
case.
(b) Any person on whose behalf an action is brought pursuant to
subsection (1)(a) of this section may elect to exclude from
adjudication the portion of the claim for monetary relief
attributable to the person by filing notice of such election with
the court within such time as specified in the notice given
pursuant to paragraph (a) of this subsection.
(c) The final judgment in an action pursuant to subsection
(1)(a) of this section shall be res judicata as to any claim
under this section by any person on behalf of whom such action
was brought and who fails to give the notice specified in
paragraph (b) of this subsection within the period specified in
the notice given pursuant to paragraph (a) of this subsection.
(3) An action pursuant to subsection (1)(a) of this section
shall not be dismissed or compromised without the approval of the
court, and the notice of any proposed dismissal or compromise
shall be given in such manner as the court directs.
(4) In any action pursuant to subsection (1)(a) of this section
in which there has been a determination that a defendant agreed
to fix prices in violation of ORS 646.725, damages may be proved
and assessed in the aggregate by statistical or sampling methods,
by the computation and pro rata allocation of illegal
overcharges, or by such other reasonable system of estimating
aggregate damages as the court in its discretion may permit
without the necessity of separately proving the individual claim
of, or amount of damage to, persons on whose behalf the suit was
brought.
(5)(a) Monetary relief recovered in an action pursuant to
subsection (1)(a) of this section shall be distributed in such
manner as the court in its discretion may authorize, subject to
the requirement that any distribution procedure adopted afford
each person on whose behalf the suit was brought a reasonable
opportunity to secure their appropriate portion of the net
monetary relief.
(b) The Attorney General shall deposit that portion of the
monetary relief awarded by the court as costs of suit and a
reasonable attorney fee in the Consumer Protection and Education
Revolving Account established pursuant to ORS 180.095.
(c) To the extent that the monetary relief awarded by the court
is not exhausted by distribution pursuant to paragraphs (a) and
(b) of this subsection, the remaining funds shall be deemed a
civil penalty by the court and assessed as such for the benefit
of the state pursuant to ORS 646.760.
(6) The powers granted in this section are in addition to and
not in derogation of the common law powers of the Attorney
General to act as parens patriae, or the powers of the Attorney
General to sue as a representative party on behalf of a class
pursuant to
{ - ORS 13.210 to 13.410 (1977 Replacement Part) - } { + ORCP
32 + }.
SECTION 104. ORS 646.780 is amended to read:
646.780. (1)(a) A person including the state or any municipal
corporation or political subdivision injured in its business or
property by a violation of ORS 646.725 or 646.730 may sue
therefor and shall recover threefold the damages sustained and
the costs of suit { + . + } { - , including necessary
reasonable investigative costs and reasonable experts' fees, and
a reasonable attorney fee at trial and on appeal, except that the
state may recover only its actual damages sustained, plus costs
of suit including necessary reasonable investigative costs and
reasonable experts' fees, and a reasonable attorney fee at trial
and on appeal, if it brings an action pursuant to ORS 646.760 or
commences a prosecution under ORS 646.815 and 646.990 (2). - }
{ + The court may award reasonable attorney fees, expert
witness fees and investigative costs to a prevailing party in an
action under ORS 646.815 and 646.990 (2). + }
(b) Notwithstanding paragraph (a) of this subsection, in any
action under this section in which the plaintiff prevails solely
on the basis of a judgment or decree entered in a proceeding
under sections 1 to 45 of Title 15 of the United States Code or
in another action by the state under ORS 646.760, 646.770 or this
section, used as collateral estoppel against a defendant pursuant
to ORS 646.805, plaintiff's recovery shall be limited to the
actual damages sustained and the costs of suit, including
necessary reasonable investigative costs and reasonable experts'
fees, and a reasonable attorney fee at trial and on appeal.
(2) Unless there is a subsequent judgment that the court lacks
jurisdiction, the taking of any testimony at the commencement of
trial on a civil complaint for damages filed under the antitrust
laws of the United States shall constitute an absolute bar and
waiver of any right of a plaintiff in such action to recover
damages from the same defendant under this section for the same
or substantially the same acts of plaintiff.
{ + (3) The court may award reasonable attorney fees to the
prevailing party in an action brought under this section. + }
SECTION 105. ORS 646.876 is amended to read:
646.876. { - The buyer of a motor vehicle who prevails - }
{ + The court may award reasonable attorney fees to the
prevailing party + } in an action against a person who has a duty
to disclose information under ORS 646.874 { - to the buyer
shall be awarded attorney fees and costs - } .
SECTION 106. ORS 648.135 is amended to read:
648.135. (1) The Secretary of State may bring a suit in the
name of the state in the Circuit Court for Marion County, or in
the circuit court of any county in which the defendant carries
on, conducts or transacts business, to enjoin a violation of ORS
648.007. Upon a proper showing, the court shall grant a permanent
or temporary injunction or restraining order. The court shall not
require the Secretary of State to post a bond.
(2) A person who carries on, conducts or transacts business in
violation of ORS 648.007 shall lack standing before the courts of
this state to maintain a cause of action for the benefit of the
business. The person may cure the incapacity at any time by
complying with ORS 648.007. Nothing in this section shall extend
any statute of limitations.
(3) In any action or suit in which the cause of action arises
out of business that the defendant carried on, conducted or
transacted in violation of ORS 648.007, the plaintiff shall be
entitled to recover $500 or the actual costs { - , including
attorney fees, - } that the court determines that the plaintiff
reasonably incurred to ascertain the real and true name of the
defendant, whichever is greater. { - The plaintiff may recover
under this subsection even if the defendant prevails in the
action or suit, unless the court finds that the action or suit
was frivolous. - } { + The court may award reasonable attorney
fees to the prevailing party in an action under this
subsection. + }
(4) Except as provided in this section, nothing in this chapter
shall abrogate or limit the law as to unfair competition or
unfair trade practices or derogate from the common law, the
principles of equity or the statutes of this state or of the
United States with respect to the right to acquire and to protect
trade names.
SECTION 107. ORS 650.020 is amended to read:
650.020. (1) Any person who sells a franchise is liable as
provided in subsection (3) of this section to the franchisee if
the seller:
(a) Employs any device, scheme or artifice to defraud; or
(b) Makes any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made,
not misleading.
(2) It shall be an affirmative defense to any action for legal
or equitable remedies brought under subsection (1) of this
section if the franchisee knew of the untruth or omission.
(3) The franchisee may recover any amounts to which the
franchisee would be entitled upon an action for a rescission
{ - , reasonable attorney fees at trial and on appeal and court
costs - } . { + The court may award reasonable attorney fees
to the prevailing party in an action under this section. + }
(4) Every person who directly or indirectly controls a
franchisor liable under subsection (1) of this section, every
partner, officer or director of the franchisor, every person
occupying a similar status or performing similar functions, and
every person who participates or materially aids in the sale of a
franchise is also liable jointly and severally to the same extent
as the franchisor, unless the nonseller did not know, and, in the
exercise of reasonable care, could not have known, of the
existence of the facts on which the liability is based.
(5) An action may not be commenced under this section more than
three years after the sale.
(6) A corporation which is liable under ORS 650.005 to 650.085
shall have a right of indemnification against any of its
principal executive officers, directors and controlling persons
whose willful violation of any provision of ORS 650.005 to
650.085 gave rise to the liability. All persons liable under ORS
650.005 to 650.085 shall have a right of contribution against all
other persons similarly liable, based upon each person's
proportionate share of the total liability, except:
(a) A person willfully misrepresenting or failing to disclose
shall not have any right of contribution against any other person
guilty merely of a negligent violation; and
(b) A principal executive officer, director, or controlling
person shall not have any right of contribution against the
corporation to which the person sustains that relationship.
SECTION 108. ORS 650.065 is amended to read:
650.065. (1) Whenever the director determines that any person
has engaged in, or is about to engage in, any act or practice
which the director believes would give rise to liability under
ORS 650.020, the director may bring suit in the name of the State
of Oregon in any circuit court of this state to enjoin the acts
or practices. { - If the director prevails, the director shall
recover court costs and a reasonable attorney fee at trial and on
appeal to be fixed by the court. - } Upon a proper showing, the
court shall grant a permanent or temporary injunction or
restraining order and may appoint a receiver or conservator for
the defendant or the defendant's assets. The court shall not
require the director to post a bond. { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
(2) The director may include in any suit authorized by
subsection (1) of this section a claim for any amount the
franchisee could recover under ORS 650.020 or a claim for damages
on behalf of other persons injured by any act or practice against
which an injunction or restraining order is sought. The court may
award appropriate relief to the franchisee or such other persons
if the court finds that enforcement of the right of the
franchisee or other persons by private civil action or suit,
whether by class action or otherwise, would be so burdensome or
expensive as to be impractical.
SECTION 109. ORS 650.250 is amended to read:
650.250. Any person who is injured in the person's business or
property by reason of a violation of ORS 650.250 to 650.250 may
sue therefor in any court having jurisdiction in the county where
the defendant resides or is found, or any agent resides or is
found, or where service may be obtained, for injunctive relief or
to recover the damages sustained by the person { - , and may be
awarded attorney fees together with the costs of the suit - } .
Any action brought pursuant to this section shall be commenced
within four years after the cause of action accrued. { + The
court may award reasonable attorney fees to the prevailing party
in an action under this section. + }
SECTION 110. ORS 652.230 is amended to read:
652.230. (1) Any employee whose compensation is at a rate that
is in violation of ORS 652.220 shall have a right of action
against the employer for the recovery of:
(a) The amount of the unpaid wages to which the employee is
entitled for the one year period preceding the commencement of
the action; and
(b) An additional amount as liquidated damages equal to the
amount referred to in paragraph (a) of this subsection.
(2) { - In addition to any judgment awarded to the plaintiff,
the court shall allow reasonable attorney fees at trial and on
appeal to be taxed in any judgment recovered. - } { + The court
shall award reasonable attorney fees to the prevailing plaintiff
in an action under this section. The court may award reasonable
attorney fees and expert witness fees incurred by a defendant who
prevails in the action if the court determines that the plaintiff
had no reasonable basis for asserting a claim or no reasonable
basis for appealing an adverse decision of a trial court. + }
(3) The action for the unpaid wages and liquidated damages may
be maintained by one or more employees on behalf of themselves or
other employees similarly situated.
(4) No agreement for compensation at a rate less than the rate
to which such employee is entitled under ORS 652.210 to 652.230
is a defense to any action under ORS 652.210 to 652.230.
SECTION 111. ORS 653.055 is amended to read:
653.055. (1) Any employer who pays an employee less than the
wages to which the employee is entitled under ORS 653.010 to
653.261 is liable to the employee affected:
(a) For the full amount of the wages, less any amount actually
paid to the employee by the employer; { + and + }
{ - (b) For costs and such reasonable attorney fees at trial
and on appeal as are allowed by the court; and - }
{ - (c) - } { + (b) + } For civil penalties provided in ORS
652.150.
(2) Any agreement between an employee and an employer to work
at less than the wage rate required by ORS 653.010 to 653.261 is
no defense to an action under subsection (1) of this section.
(3) The commissioner has the same powers and duties in
connection with a wage claim based on ORS 653.010 to 653.261 as
the commissioner has under ORS 652.310 to 652.445 and in addition
the commissioner may, without the necessity of assignments of
wage claims from employees, initiate suits against employers to
enjoin future failures to pay required minimum wages or overtime
pay and to require the payment of minimum wages and overtime pay
due employees but not paid as of the time of the filing of suit.
{ - The commissioner is entitled to recover, in addition to
costs, such sum as the court or judge may adjudge reasonable as
attorney fees at trial and on appeal. - } The commissioner may
join in a single proceeding and in one cause of suit any number
of wage claims against the same employer. If the commissioner
does not prevail in such action, the commissioner shall pay all
costs and disbursements from the Bureau of Labor and Industries
Account.
{ + (4) The court may award reasonable attorney fees to the
prevailing party in any action brought by an employee under this
section. + }
SECTION 112. ORS 653.285 is amended to read:
653.285. If an employee's trade equipment is damaged upon or
stolen from premises under the employer's control as a proximate
cause of the employer's failure to comply with ORS 653.280 the
employee has a right to file an action against the employer, and
the employer is liable, for financial settlement as is needed to
repair or replace the equipment. { - If an employee seeking to
recover for damage to or theft of trade equipment prevails on
such action, the employee shall be awarded reasonable attorney
fees at trial and on appeal. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
SECTION 113. ORS 656.052 is amended to read:
656.052. (1) No person shall engage as a subject employer
unless and until the person has provided coverage pursuant to ORS
656.017 for subject workers the person employs.
(2) Whenever the director has reason to believe that any person
has violated subsection (1) of this section, the director shall
serve upon the person a proposed order declaring the person to be
a noncomplying employer and containing the amount, if any, of
civil penalty to be assessed pursuant to ORS 656.735 (1).
(3) If any person fails to comply with ORS 656.017 after an
order declaring the person to be a noncomplying employer has
become final by operation of law or on appeal, the circuit court
of the county in which the person resides or in which the person
employs workers shall, upon the commencement of a suit by the
director for that purpose, enjoin the person from further
employing subject workers until the person has complied with ORS
656.017. Upon the filing of such a suit, the court shall set a
day for hearing and shall cause notice thereof to be served upon
the noncomplying employer. The hearing shall be not less than
five days from the service of the notice.
(4) { - When the director prevails in any suit brought
pursuant to subsection (3) of this section, the director is
entitled to recover from the noncomplying employer court costs
and attorney fees incurred by the director. If the noncomplying
employer is a corporation, other than a nonprofit corporation,
the corporation and the officers and directors thereof shall be
jointly and severally liable for such court costs and attorney
fees. - } { + The court may award reasonable attorney fees to
the prevailing party in an action under subsection (3) of this
section. + }
SECTION 114. ORS 658.220 is amended to read:
658.220. (1) When it appears to the commissioner that any
person is engaged or about to engage in an act or practice that
constitutes a violation of ORS 658.005 to 658.245 or the rules
adopted pursuant thereto, the commissioner may, without bond,
obtain an order from an appropriate circuit court enjoining any
such act or practice. { - If the commissioner prevails, the
commissioner is entitled to recover, in addition to costs, such
sum as the court or judge may adjudge reasonable as attorney fees
at trial and on appeal. - } { + The court may award reasonable
attorney fees to the prevailing party in an action under this
subsection. + }
(2) The commissioner may issue subpoenas in any investigation
in a contested case the commissioner is conducting outside of a
court proceeding or as otherwise necessary for the performance of
any of the duties of the commissioner under ORS 658.005 to
658.245.
SECTION 115. ORS 658.415 is amended to read:
658.415. (1) No person shall act as a farm labor contractor
unless the person has first been licensed by the commissioner
pursuant to ORS 658.405 to 658.503 and 658.830. Any person may
file an application for a license to act as a farm labor
contractor at any office of the Bureau of Labor and Industries.
The application shall be sworn to by the applicant and shall be
written on a form prescribed by the Commissioner of the Bureau of
Labor and Industries. The form shall include, but not be limited
to, questions asking:
(a) The applicant's name, Oregon address and all other
temporary and permanent addresses the applicant uses or knows
will be used in the future.
(b) Information on all motor vehicles to be used by the
applicant in operations as a farm labor contractor including
license number and state of licensure, vehicle number and the
name and address of vehicle owner for all vehicles used.
(c) Whether or not the applicant was ever denied a license
under ORS 658.405 to 658.503 and 658.830 within the preceding
three years, or in this or any other jurisdiction had such a
license denied, revoked or suspended within the preceding three
years.
(d) The names and addresses of all persons financially
interested, whether as partners, shareholders, associates or
profit-sharers, in the applicant's proposed operations as a farm
labor contractor, together with the amount of their respective
interests, and whether or not, to the best of the applicant's
knowledge, any of these persons was ever denied a license under
ORS 658.405 to 658.503 and 658.830 within the preceding three
years, or had such a license denied, revoked or suspended within
the preceding three years in this or any other jurisdiction.
(2) Each applicant shall furnish satisfactory proof with the
application of the existence of a policy of insurance in an
amount adequate under rules issued by the Bureau of Labor and
Industries for vehicles to be used to transport workers. For the
purpose of this subsection the certificate of an insurance agent
licensed in Oregon is satisfactory evidence of adequate
insurance.
(3) Each applicant shall submit with the application and shall
continually maintain thereafter, until excused, proof of
financial ability to promptly pay the wages of employees and
other obligations specified in this section. The proof required
in this subsection shall be in the form of a corporate surety
bond of a company licensed to do such business in Oregon, an
irrevocable letter of credit issued by a commercial bank as
defined in ORS 706.005, a cash deposit or a deposit the
equivalent of cash. For the purposes of this subsection it shall
be deemed sufficient compliance if the farm labor contractor
procures a savings account at a bank or savings and loan
institution in the name of the commissioner as trustee for the
employees of the farm labor contractor and others as their
interests may appear and delivers the evidence of the account and
the ability to withdraw the funds to the commissioner under the
terms of a bond approved by the commissioner. The amount of the
bond and the security behind the bond, or of the letter of credit
shall be based on the maximum number of employees the contractor
employs at any time during the year. The bond or letter of credit
shall be:
(a) $10,000 if the contractor employs no more than 20
employees;
(b) $30,000 if the contractor employs 21 to 50 employees;
(c) $60,000 if the contractor employs 51 to 100 employees; and
(d) $90,000 if the contractor employs more than 100 employees.
(4) In the event that a single business entity licensed as a
farm labor contractor has more than one natural person who, as an
owner or employee of the business entity, engages in activities
which require the persons to be licensed individually as farm
labor contractors, and each such person engages in such
activities solely for that business entity, the Bureau of Labor
and Industries may provide by rule for lower aggregate bonding
requirements for the business entity and its owners and
employees. If there is an unsatisfied final judgment of a court
or decision of an administrative agency against a license
applicant, the subject of which is any matter which would be
covered by the bond, letter of credit or deposit referred to in
subsection (3) of this section, the commissioner shall not issue
a license to the applicant until the judgment or decision is
satisfied. As a condition of licensing any such applicant, the
commissioner may require the applicant to submit proof of
financial ability required by subsection (3) of this section in
an amount up to three times that ordinarily required of a license
applicant.
(5) All corporate surety bonds and letters of credit filed
under this section shall be executed to cover liability for the
period for which the license is issued. During the period for
which executed no bond or letter of credit can be canceled or
otherwise terminated.
(6) Each application must be accompanied by a fee of $20.
(7) Any person who uses the services of a farm labor contractor
shall be liable as follows if the farm labor contractor has
failed to comply with any of the provisions of this section:
(a) Be personally and jointly and severally liable to any
employee so far as such employee has not been paid wages in full.
(b) Be personally liable for all penalty wages which have
occurred under ORS 652.150 for the wages due under this section.
{ - (c) Be personally liable for court costs and
disbursements and a reasonable attorney fee at trial and on
appeal to be set by the court or judge if suit or action is
commenced to enforce any of the provisions of this section and
the plaintiff prevails. - }
(8) Any person who suffers any loss of wages from the employer
of the person or any other loss specified in subsection (16) of
this section the person shall have a right of action in the name
of the person against the surety upon the bond, against the
letter of credit issuer or against the deposit with the
commissioner:
(a) The right of action is assignable and must be included with
an assignment of a wage claim, any other appropriate claim, or of
a judgment thereon.
(b) The right of action shall not be included in any suit or
action against the farm labor contractor but must be exercised
independently after first procuring a judgment, decree, or other
form of adequate proof of liability established by rule and
procedure under subsection (14) of this section establishing the
farm labor contractor's liability for the claim.
(9) The surety company or the commissioner shall make prompt
and periodic payments on the farm labor contractor's liability up
to the extent of the total sum of the bond, letter of credit or
deposit. Payments shall be made in the following manner:
(a) Payment shall be made based upon priority of wage claims
over advances made by the grower or producer of agricultural
commodities or the owner or lessee of land intended to be used
for the production of timber, for advances made to or on behalf
of the farm labor contractor.
(b) Payment in full of all sums due to each person who presents
adequate proof of the claim.
(c) If there are insufficient funds to pay in full the person
next entitled to payment in full such person will be paid in
part.
(10) No person shall bring any suit or action against the
surety company, the letter of credit issuer or the commissioner
on the bonding or letter of credit obligation or as trustee for
the beneficiaries of the farm labor contractor under any deposit
made pursuant to this section unless the person has first
exhausted the procedures contained in subsections (8) and (12) of
this section and contends that the surety company, the letter of
credit issuer or the commissioner still has funds which are
applicable to the person's judgment or acknowledgment.
(11) The commissioner shall not be prevented from accepting
assignments of wage claims and enforcing liability against the
surety on the bond or the letter of credit issuer or from
applying the deposit to just wage claims filed with the
commissioner.
(12) All claims against the bond, letter of credit or deposit
shall be unenforceable unless request for payment of a judgment
or other form of adequate proof of liability or a notice of the
claim has been made by certified mail to the surety or the
commissioner within six months from the end of the period for
which the bond, letter of credit or deposit was executed and
made.
(13) If the commissioner has received no notice as provided in
subsection (12) of this section within six months after a farm
labor contractor is no longer required to provide and maintain a
surety bond, letter of credit or deposit the commissioner shall
terminate and surrender any bond or any deposit under the control
of the commissioner to the person who is entitled thereto upon
receiving appropriate proof of such entitlement.
(14) The commissioner shall adopt rules reasonably necessary
for administration and enforcement of the provisions of this
section.
(15) Every farm labor contractor required by this section to
furnish a surety bond or a letter of credit, or make a deposit in
lieu thereof, shall keep conspicuously posted upon the premises
where employees working under the contractor are employed, a
notice in both English and any other language used by the farm
labor contractor to communicate with workers specifying the
contractor's compliance with the requirements of this section and
specifying the name and Oregon address of the surety on the bond
or the name and address of the letter of credit issuer or a
notice that a deposit in lieu of the bond has been made with the
commissioner together with the address of the commissioner.
(16) The bond, letter of credit or deposit referred to in
subsection (3) of this section shall be payable to the
commissioner and shall be conditioned upon:
(a) Payment in full of all sums due on wage claims of
employees.
(b) Payment by the labor contractor of all sums due to the
grower or producer of agricultural commodities or the owner or
lessee of land intended to be used for the production of timber
for advances made to or on behalf of the farm labor contractor.
(17) No license shall be issued until the applicant executes a
written statement which shall be subscribed and sworn to and
which shall contain the following declaration:
_________________________________________________________________
With regards to any action filed against me concerning my
activities as a farm labor contractor, I appoint the Commissioner
of the Oregon Bureau of Labor and Industries as my lawful agent
to accept service of summons when I am not present in the
jurisdiction in which such action is commenced or have in any
other way become unavailable to accept service.
_________________________________________________________________
{ + (18) The court may award reasonable attorney fees to the
prevailing party in any action to enforce the provisions of this
section. + }
SECTION 116. ORS 659.160 is amended to read:
659.160. (1) Any person claiming to be aggrieved by unlawful
discrimination in higher education as prohibited by ORS 659.150
may file a civil action in circuit court for equitable relief or,
subject to the terms and conditions of ORS 30.265 to 30.300,
damages, or both. The court may order such other relief as may be
appropriate. Damages shall be $200 or actual damages, whichever
is greater.
(2) The action authorized by this section shall be filed within
one year of the filing of a grievance.
(3) No action shall be filed unless, within 180 days of the
alleged discrimination, a grievance has been filed with the
community college board of education or the State Board of Higher
Education.
(4) No action may be filed until 90 days after filing a
grievance unless only injunctive relief is sought pursuant to
ORCP 79. The right to temporary or preliminary injunctive relief
shall be independent of the right to pursue any administrative
remedy available to complainants pursuant to ORS 659.150.
(5) No action may be filed if the community college board of
education or the State Board of Higher Education has obtained a
conciliation agreement with the person filing the grievance or if
a final determination of a grievance has been made except as
provided in ORS 183.480.
(6) Notwithstanding the filing of a grievance, pursuant to
subsection (3) of this section, any person seeking to maintain an
action under this section shall also file a notice of claim
within 180 days of the alleged discrimination as required by ORS
30.275.
{ - (7) In an action brought under this section, the court
may allow the prevailing plaintiff costs, disbursements and
reasonable attorney fees. If the defendant prevails, the court
may award costs, disbursements and reasonable attorney fees if it
finds the action to be frivolous. - }
{ + (7) The court shall award reasonable attorney fees to a
prevailing plaintiff in any action under this section. The court
may award reasonable attorney fees and expert witness fees
incurred by a defendant who prevails in the action if the court
determines that the plaintiff had no objectively reasonable basis
for asserting a claim or no objectively reasonable basis for
appealing an adverse decision of a trial court. + }
(8) Nothing in this section is intended to reduce the
obligations of the education agencies under ORS 659.150 to
659.160.
SECTION 117. ORS 659.165 is amended to read:
659.165. (1) A political subdivision of the state may not enact
or enforce any charter provision, ordinance, resolution or policy
granting special rights, privileges or treatment to any citizen
or group of citizens on account of sexual orientation, or enact
or enforce any charter provision, ordinance, resolution or policy
that singles out citizens or groups of citizens on account of
sexual orientation.
(2) Any person who believes that a political subdivision has
enacted or is enforcing a charter provision, ordinance,
resolution or policy in violation of this section may bring an
action in circuit court to have the charter provision, ordinance,
resolution or policy declared invalid, for injunctive relief and
for such other relief as the court may consider appropriate. The
court shall award reasonable attorney fees and costs to a
plaintiff who prevails in an action under this subsection.
{ + The court may award reasonable attorney fees and expert
witness fees incurred by a defendant who prevails in the action
if the court determines that the plaintiff had no objectively
reasonable basis for asserting a claim or no objectively
reasonable basis for appealing an adverse decision of a trial
court. + }
SECTION 118. ORS 661.280 is amended to read:
661.280. { - If the plaintiff is successful in maintaining an
action either for damages or for permanent relief by injunction,
or for nominal damages only, the plaintiff shall be entitled to
recover a reasonable attorney fee at trial and on appeal, to be
taxed by the court and merged in the judgment. - } { + In any
action under ORS 661.250 or 661.260, the court may award
reasonable attorney fees to the prevailing party. + }
SECTION 119. ORS 671.578 is amended to read:
671.578. If any person suffered costs or damages as a result of
an individual providing a false or invalid State Landscape
Contractors Board number or otherwise misleading a person with
respect to licensing with the board, that person may bring suit
in a court of competent jurisdiction to recover { - the costs,
damages and attorney fees. - } { + damages. The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
SECTION 120. ORS 671.705 is amended to read:
671.705. (1) If any claim in an amount of more than $200 is
filed with the board against a landscaping business under ORS
671.703, the landscaping business may appeal the decision of the
board to a court.
(2) { - If a court of this state awards damages on a claim
against a landscaping business, the court shall award reasonable
costs, expert witness fees and attorney fees at trial and on
appeal to the person who made the claim to the board if the same
claim has been filed with the board under ORS 671.703 and damages
were awarded to the person making the claim. - } { + The court
may award reasonable attorney fees to the prevailing party in any
action on a claim against a landscaping business. + }
SECTION 121. ORS 692.180 is amended to read:
692.180. (1) Upon complaint or upon its own motion, the board
may investigate any complaint concerning any person, licensee or
holder of a certificate of authority made by any person or by the
board. If the board finds any of the causes described in this
section in regard to any person, licensee or applicant or the
holder of a certificate of authority, the board may impose a
civil penalty of not more than $1,000 for each violation, suspend
or revoke a license to practice or to operate under this chapter
or refuse to grant or renew a license. The causes are as follows:
(a) Misrepresentation in the conduct of business or in
obtaining a license.
(b) Fraudulent or dishonest conduct where such conduct bears a
demonstrable relationship to funeral service practice or
embalming practice, or the operation of cemeteries or
crematoriums.
(c) Except as provided in ORS 128.400 to 128.440, 128.990,
128.991 and 692.285, solicitation of human dead bodies by the
licensee or any agent, assistant or employee of the licensee,
either before or after death.
(d) Offensive treatment of dead human bodies or a body in the
person's custody has been disposed of in violation of ORS chapter
432 or rules adopted pursuant thereto.
(e) Aiding or abetting a person who is not a licensee or an
apprentice in any act involving the disposition of dead human
bodies before the bodies undergo cremation, entombment or burial
or before the bodies are transported out of the State of Oregon.
(f) Sale or reuse of any casket or body container which has
been previously utilized for the placement of a deceased human
body. This does not include use of a rental cover as defined in
ORS 692.010.
(g) Violation of any of the provisions of this chapter or any
rules adopted under this chapter.
(h) Violation of any provision of ORS 128.412 or 128.415 or
regulations adopted by the Federal Trade Commission regulating
funeral industry practices.
(i) Conviction of a crime where such crime bears a demonstrable
relationship to funeral service practice or embalming practice or
the operation of cemeteries or crematoriums. A copy of the record
of such conviction certified to by the clerk or the court
entering the conviction, shall be conclusive evidence of the
conviction.
(j) Violation of ORS chapter 97 as it relates to disposition of
human bodies and to cemeteries.
(k) Refusing to surrender promptly the custody of a dead human
body, upon the express order of the person lawfully entitled to
the custody of the body.
(L) Acting as the legal representative of any deceased person
for whom the licensee has rendered services governed by this
chapter. This subsection does not prohibit a licensee from acting
as the legal representative of a deceased relative or a deceased
licensee if the deceased licensee was a partner, employee or
employer in the licensee's practice.
(m) Failure to pay any civil penalty imposed by the board
within 10 days after the order is entered or, if appealed, within
10 days after the order is sustained on appeal.
(2) All amounts recovered under this section shall be deposited
in accordance with ORS 692.375.
(3) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
{ - (4) In any judicial review of orders under this section,
the court may assess costs and reasonable attorney fees against
the licensee on trial and on appeal. Costs and fees shall be
payable and collectible in the same manner as the civil
penalty. - }
{ + (4) The court may award reasonable attorney fees to the
prevailing party in any judicial review of orders entered under
the provisions of this section. + }
SECTION 122. ORS 697.762 is amended to read:
697.762. (1) When the director determines that any person has
engaged in, is engaging in or is about to engage in any act or
practice which the director believes is in violation of ORS
697.612 or any provision of ORS 697.652 to 697.702, the director
may bring suit in the name of the State of Oregon in any circuit
court of this state to enjoin the acts or practices. { - If the
director prevails, the director shall recover court costs and a
reasonable attorney fee to be fixed by the court. - } Upon a
proper showing, the court shall grant a permanent or temporary
injunction or restraining order and may appoint a receiver or
conservator for the defendant or the defendant's assets. The
court shall not require the director to post a bond. { + The
court may award reasonable attorney fees to the prevailing party
in an action under this section. + }
(2) The director may include in any suit authorized by
subsection (1) of this section a claim for damages on behalf of
any other person injured by any act or practice against which an
injunction or restraining order is sought. The court may award
appropriate relief to the person if the court finds that
enforcement of the right of the person by private civil action or
suit, whether by class action or otherwise, would be so
burdensome or expensive as to be impracticable.
SECTION 123. ORS 697.792 is amended to read:
697.792. (1) If any claim in an amount of more than $200 is
filed with the director against a debt consolidating agency under
ORS 697.782, the debt consolidating agency may remove the claim
from the director's determination by filing within 20 days of the
debt consolidating agency's receipt of notice of the claim, a
request with the director to remove the claim.
(2) Upon receipt of a request to remove a claim under
subsection (1) of this section, the director shall:
(a) Discontinue hearings procedures under ORS 697.782; and
(b) Notify the person filing the claim that the director cannot
determine the claim but that the person may file the claim in an
appropriate court of this state.
(3) { + The court may award reasonable attorney fees to the
prevailing party in an action on a claim removed from the
director under this section. + } { - If a court of this state
awards damages on a claim against a debt consolidating agency to
the person bringing the suit or action, the court shall award
reasonable costs, expert witness fees and attorney fees at trial
and on appeal to the person bringing the suit or action if the
same claim has been: - }
{ - (a) Filed with the director under ORS 697.782; and - }
{ - (b) Removed from the director under this section. - }
(4) The director shall provide a debt consolidating agency with
notice of rights and liabilities under this section when the
director gives the debt consolidating agency notice of a claim
filed against the debt consolidating agency under ORS 697.782.
(5) A person whose claim is removed from the director under
this section does not have a claim filed with the director for
purposes of establishing priority under ORS 697.812.
SECTION 124. ORS 701.067 is amended to read:
701.067. If any person suffered costs or damages as a result of
an individual providing a false or invalid Construction
Contractors Board number or otherwise misleading a person with
respect to registration with the board, that person may bring
suit in a court of competent jurisdiction to recover { - the
costs, damages and attorney fees. - } { + damages. The court
may award reasonable attorney fees to the prevailing party in an
action under this section. + }
SECTION 125. ORS 722.116 is amended to read:
722.116. (1) Subject to ORS 722.118 (1), a member with voting
rights has the right to examine in person, or by an agent or an
attorney, at reasonable times, for any proper purpose, the
relevant books and records of the association and to make
extracts therefrom. If an association refuses to allow such a
member, or the agent or attorney of such a member, to so examine
and make extracts from such books and records for a proper
purpose, the member may petition any court of competent
jurisdiction for an order compelling the production for
examination by such member of the relevant books and records. The
order may be granted if:
(a) The member is acting in good faith and for a proper purpose
in making the demand; and
(b) The confidentiality of the accounts and records pertaining
to savings accounts and personal information in loan records of
other persons is preserved during such production and
examination.
(2) { - A member who prevails in a proceeding brought under
subsection (1) of this section shall be allowed attorney fees at
trial and on appeal and court costs in the proceeding. - } { +
The court may award reasonable attorney fees to the prevailing
party in an action under this section. + }
SECTION 126. ORS 722.118 is amended to read:
722.118. (1) Every account holder and borrower has the right to
inspect the books and records of a savings association that
pertain to the accounts of the account holder or borrower.
Otherwise, the right of inspection and examination of the
accounts of account holders or personal information in loan
records is limited to:
(a) The director or an authorized representative of the
director.
(b) Persons authorized to act for the association.
(c) Any federal or state instrumentality or agency authorized
to inspect or examine the books and records of an insured
association.
(d) Any person acting under authority of a court of competent
jurisdiction.
(2) A member has the right to communicate with other members of
the association with reference to any question pending or to be
presented for consideration at a meeting of the members. An
association may not defeat such right by a redemption of the
member's accounts in the association. A member who wishes to
communicate with other members shall submit to the association a
request, subscribed by the member, which includes:
(a) The member's full name and address.
(b) The nature and extent of the member's interest in the
association at the time the member's application for
communication is made.
(c) A statement of the reasons for and purposes of the
communication and that the communication is not for any reason
other than the business welfare of the association.
(d) A copy of the communication.
(e) If the communication concerns a question to be raised at a
meeting of the members of the association, the date of the
meeting at which the matter will be presented.
(3) Upon receipt of the request referred to in subsection (2)
of this section, the association shall, within 10 days, notify
the requesting member of:
(a) The approximate number of the members and the estimated
amount of the reasonable costs and expenses of mailing the
communication; or
(b) Its determination to refuse the request and the specific
reasons for its refusal, including its determination whether or
not the request has been made for a proper purpose.
(4) Within seven days after receipt of the sum specified
pursuant to subsection (3)(a) of this section and sufficient
copies of the communication, the association shall mail the
communication to all its members.
(5) If a request referred to by subsection (2) of this section
is refused by the association, the requesting member may submit
the request and the refusal thereof to the director for review.
The director may issue an order denying the request or, if the
director finds the request is not for any reason other than the
business welfare of the association, granting the request and
directing the association to comply with subsection (4) of this
section.
(6) { - The members of the board of directors of an
association that improperly refuses a request made pursuant to
this section are severally liable to the requesting person for
attorney fees and court costs in addition to any other damages or
remedy afforded. - } { + In any action arising out of a request
that is refused under this section, the court may award
reasonable attorney fees to the prevailing party. + }
SECTION 127. ORS 731.314 is amended to read:
731.314. (1) No cause of action may arise and no liability may
be imposed against the director, an authorized representative of
the director or any examiner appointed by the director for any
statements made or conduct performed in good faith pursuant to an
examination or investigation.
(2) No cause of action may arise and no liability may be
imposed against any person for communicating or delivering
information or data to the director or an authorized
representative of the director or examiner pursuant to an
examination or investigation if the communication or delivery was
performed in good faith and without fraudulent intent or an
intent to deceive.
(3) This section does not abrogate or modify in any way any
common law or statutory privilege or immunity otherwise enjoyed
by any person to which subsection (1) or (2) of this section
applies.
(4) { - A person to whom subsection (1) or (2) of this
section applies is entitled to an award of attorney fees and
costs if the person is the - } { + The court may award
reasonable attorney fees to the + } prevailing party in a cause
of action arising out of activities { + of the director or an
examiner + } in carrying out an examination or investigation
{ - and if the action that was brought did not have a reasonable
basis in law or fact at the time that it was initiated - } .
SECTION 128. ORS 731.737 is amended to read:
731.737. (1) A person or other entity described in this
subsection acting without malice, fraudulent intent or bad faith
is not subject to civil liability, and no cause of action of any
nature may exist against such a person or entity, when the person
is performing authorized functions, including publication or
dissemination of information, regarding any activity described in
subsection (3) of this section. This subsection applies to the
following persons and entities:
(a) Law enforcement officials and their agents and employees.
(b) The National Association of Insurance Commissioners, the
department, a federal or state governmental agency established to
detect and prevent activities described in subsection (3) of this
section and any other organization established for the same
purpose, and agents, employees or designees of any such person or
entity.
(2) A person acting without malice, fraudulent intent or bad
faith is not subject to liability by virtue of filing reports or
furnishing information regarding any activity described in
subsection (3) of this section with or to any person or other
entity described in subsection (1) of this section.
(3) The activities referred to in subsections (1) and (2) of
this section include but are not limited to the following,
whether any activity is suspected or anticipated or has occurred:
(a) Acts or omissions by a person who presents a statement
described in this paragraph to or by an insurer or an agent,
causes such a statement to be presented to or by an insurer or an
agent, or prepares such a statement with knowledge or belief that
it will be presented to or by an insurer or an agent. This
paragraph applies to any statement that the person knows to
contain false information as part of, in support of or concerning
any fact relating to the following, or conceals relevant
information relating to the following:
(A) An application for the issuance of insurance.
(B) The rating of insurance.
(C) A claim for payment or benefit pursuant to any insurance.
(D) Premiums paid on insurance.
(E) Payments made in accordance with the terms of insurance
coverage.
(F) An application for a certificate of authority.
(G) The financial condition of an insurer.
(H) The acquisition of any insurer.
(b) Solicitation or an attempt to solicit new or renewal
insurance by or for an insolvent insurer or other person subject
to regulation under the Insurance Code.
(c) Removal or an attempt to remove assets or any record of
assets, transactions and affairs from the home office or other
place of business of the insurer or other person subject to
regulation under the Insurance Code, or from the place of
safekeeping of such a person, or who conceals or attempts to
conceal the assets or record from the director.
(d) Diversion, an attempt to divert or a conspiracy to divert
funds of an insurer or other person subject to regulation under
the Insurance Code, or of any other person, in connection with:
(A) The transaction of insurance.
(B) The conduct of business activities by an insurer or other
person subject to regulation under the Insurance Code.
(C) The formation, acquisition or dissolution of an insurer or
other person subject to regulation under the Insurance Code.
(4) This section does not abrogate or modify in any way any
common law or statutory privilege or immunity otherwise enjoyed
by a person or entity made immune from liability under this
section.
(5) { - A person or entity who is immune from liability under
this section is entitled to attorney fees and costs if the person
or entity is a prevailing party in a civil tort action and the
party bringing the action did not have a reasonable basis in law
or fact for bringing the action at the time the action was
initiated. - } { + The court may award reasonable attorney fees
to the prevailing party in any tort action against a person who
claims immunity under the provisions of this section. + }
SECTION 129. ORS 746.300 is amended to read:
746.300. An insured whose insurer violates ORS 746.280 or
746.290, or a customer whose motor vehicle body and frame repair
shop violates ORS 746.292, may file an action to recover actual
damages or $100, whichever is greater, for each violation.
{ - Any person who brings an action under this section may also
recover costs, necessary disbursements and reasonable attorney
fees at trial and on appeal as determined by the court. - } { +
The court may award reasonable attorney fees to the prevailing
party in an action under this section. + }
SECTION 130. ORS 746.350 is amended to read:
746.350. In any action against an unauthorized insurer in which
service of process was made in the manner provided in ORS
746.320, { + the court may award reasonable attorney fees to the
prevailing party. + } { - if, prior to the commencement of the
action, demand is made by the plaintiff or the attorney of the
plaintiff upon such insurer for payment in accordance with the
terms of the insurance policy and the insurer does not make such
payment, and if it appears to the court that failure to make such
payment was vexatious and without reasonable cause, the court may
allow to the plaintiff reasonable attorney fees at trial and on
appeal and include such fees in any judgment that may be rendered
in such action. Failure of an insurer to defend any such action
shall be deemed prima facie evidence that its failure to make
such payment was vexatious and without reasonable cause. - }
SECTION 131. ORS 746.680 is amended to read:
746.680. (1) If any insurer, agent or insurance-support
organization fails to comply with ORS 746.640, 746.645 or
746.650, any person whose rights granted under those sections are
violated may apply to the circuit court for the county in which
the person resides, or any other court of competent jurisdiction,
for appropriate equitable relief.
(2) An insurer, agent or insurance-support organization which
discloses information in violation of ORS 746.665 shall be liable
for damages sustained by the individual about whom the
information relates. However, no individual shall be entitled to
a monetary award which exceeds the actual damages sustained by
the individual as a result of the violation of ORS 746.665.
(3) In any action brought pursuant to this section, the court
may award the cost of the action and reasonable attorney fees to
the { - person who brings the action if that person prevails in
the action - } { + prevailing party + }.
(4) An action under this section must be brought within two
years from the date the alleged violation is or should have been
discovered.
(5) Except as specifically provided in this section, there
shall be no remedy or recovery available to individuals, in law
or in equity, for occurrences constituting a violation of any
provision of ORS 746.600 to 746.690 and 750.055.
SECTION 132. ORS 756.185 is amended to read:
756.185. (1) Any public utility, railroad, air carrier or motor
carrier which does, or causes or permits to be done, any matter,
act or thing prohibited by ORS chapter 756, 757, 758, 760, 761,
763, 764, 767 or 773 or omits to do any act, matter or thing
required to be done by such statutes, is liable to the person
injured thereby in the amount of damages sustained in consequence
of such violation. If the party seeking damages alleges and
proves that the wrong or omission was the result of gross
negligence or willful misconduct, the public utility, railroad,
air carrier or motor carrier is liable to the person injured
thereby in treble the amount of damages sustained in consequence
of the violation.
{ - If damages are awarded, the court may also fix and award
reasonable attorney fees at trial and on appeal. - } { + The
court may award reasonable attorney fees to the prevailing party
in an action under this section. + }
(2) Any recovery under this section does not affect recovery by
the state of the penalty, forfeiture or fine prescribed for such
violation.
(3) This section does not apply with respect to the liability
of any public utility, railroad, air carrier or motor carrier for
personal injury or property damage.
SECTION 133. ORS 759.720 is amended to read:
759.720. (1) Any customer, telecommunications utility or local
exchange carrier who suffers damages from a violation of ORS
646.608, 646.639 and 759.700 to 759.720 by an information
provider has a cause of action against such information provider.
The court may award the greater of three times the actual damages
or $500, { + or + } order an injunction or restitution
{ - and award attorney fees and court costs to the prevailing
plaintiff - } . { + The court may award reasonable attorney fees
to the prevailing party in an action under this section. + }
(2) When an information provider has failed to comply with any
provision of ORS 646.608, 646.639 and 759.700 to 759.720, any
obligation by a customer that may have arisen from the dialing of
a pay-per-call telephone number is void and unenforceable.
(3) Any obligation that may have arisen from the dialing of a
pay-per-call telephone number is void and unenforceable if made
by:
(a) An unemancipated child under 18 years of age; or
(b) A person whose physician substantiates that:
(A) The person has a mental or emotional disorder generally
recognized in the medical or psychological community that makes
the person incapable of rational judgments and comprehending the
consequences of the person's action; and
(B) The disorder was diagnosed before the obligation was
incurred.
(4) Upon written notification to the information provider or
the billing agent for the information provider that a bill for
information delivery services is void and unenforceable under
subsection (2) or (3) of this section, no further billing or
collection activities shall be undertaken in regard to that
obligation.
(5) The telecommunications utility or local exchange carrier
may require the customer to take pay-per-call telephone blocking
service after the initial obligation has been voided.
SECTION 134. ORS 759.900 is amended to read:
759.900. (1) Any telecommunications utility which does, or
causes or permits to be done, any matter, act or thing prohibited
by this chapter or ORS chapter 756, 757 or 758 or omits to do any
act, matter or thing required to be done by such statutes, is
liable to the person injured thereby in the amount of damages
sustained in consequence of such violation. { - If damages are
awarded, the court may also fix and award reasonable attorney
fees at trial and on appeal. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
(2) Any recovery under this section does not affect recovery by
the state of the penalty, forfeiture or fine prescribed for such
violation.
(3) This section does not apply with respect to the liability
of any telecommunications utility for personal injury or property
damage.
SECTION 135. ORS 760.540 is amended to read:
760.540. (1) If a common carrier, railroad or transportation
company does not comply with an order issued under ORS 760.535
within the limit in such order, the complainants, or any person
for whose benefit such order was made, may file in any state
court of general jurisdiction, within one year from the date of
the order, a petition setting forth briefly the causes for which
the petitioner claims damages and the order of the commission in
the premises.
(2) Such action in the courts of the state shall proceed in all
respects like other civil actions for damages, except that:
(a) On the trial of such action the findings and order of the
commission are prima facie evidence of the facts therein stated;
and
(b) The petitioner is not liable for costs in the circuit court
nor for costs at any subsequent stage of the proceedings unless
they accrue upon appeal by the petitioner.
(3) { - If the petitioner finally prevails, the petitioner
shall be allowed a reasonable attorney fee at trial and on
appeal. - } { + The court may award reasonable attorney fees to
the prevailing party in an action under this section. + }
SECTION 136. ORS 774.210 is amended to read:
774.210. (1) Any utility, and any of its employees, officers,
members of the board of directors, agents, contractors or
assignees which does, or causes or permits to be done, any
matter, act or other thing prohibited by this chapter, or omits
to do any act, matter or other thing required to be done by this
chapter, is liable for any injury to Citizens' Utility Board and
to any other person in the amount of damages sustained in
consequence of such violation { + . + } { - , together with
reasonable attorney fees, to be fixed by the court in every case
of recovery. Such attorney fees shall be taxed and collected as
part of the costs in the case. - } { + The court may award
reasonable attorney fees to the prevailing party in an action
under this section. + }
(2) Citizens' Utility Board may obtain equitable relief,
without bond, to enjoin any violation of this chapter.
(3) Any recovery or enforcement obtained under this section
shall be in addition to any other recovery or enforcement under
this section or under any statute or common law. Any recovery
under this section shall be in addition to recovery by the state
of the penalty or fine prescribed for such violation by this
chapter. The rights and remedies provided by this chapter shall
be in addition to all other rights and remedies available under
law.
SECTION 137. ORS 815.410 is amended to read:
815.410. (1) A person commits the offense of illegal odometer
tampering if the person does any of the following:
(a) Advertises for sale, sells, uses or installs on any part of
a motor vehicle or on any odometer in a motor vehicle any device
which causes the odometer to register any mileage other than the
true mileage driven. For the purposes of this paragraph the true
mileage driven is that mileage driven by the vehicle as
registered by the odometer within the manufacturer's designed
tolerance.
(b) With the intent to defraud, operates a motor vehicle on any
street or highway knowing that the odometer of such vehicle is
disconnected or nonfunctional.
(c) Replaces, disconnects, turns back or resets the odometer of
any motor vehicle with the intent to reduce the number of miles
indicated on the odometer gauge.
(2) This section does not apply to a person who is servicing,
repairing or replacing an odometer in compliance with ORS
815.415.
(3) The owner or subsequent purchaser of a vehicle may bring an
action in an appropriate court of this state against any person
who violates this section and may recover from the person an
amount of $1,500 or treble the actual damage caused by the
violation { - , whichever is greater, plus costs and reasonable
attorney fees - } . Only a single recovery is permitted under
this subsection for any single violation of this section. { +
The court may award reasonable attorney fees to the prevailing
party in an action under this subsection. + }
(4) The offense described in this section, illegal odometer
tampering, is a Class C felony.
SECTION 138. ORS 815.415 is amended to read:
815.415. (1) A person commits the offense of unlawful repair of
an odometer if the person services, repairs or replaces the
odometer on any vehicle and the person does not comply with all
of the following:
(a) Whenever possible, the person shall perform the work on the
odometer without changing the mileage reading from that shown on
the odometer before the work is performed.
(b) If it is not possible to perform the work without changing
the mileage reading, the person must do all of the following:
(A) Adjust the odometer reading to zero.
(B) Place a notice on the left door frame of the vehicle
specifying the mileage reading prior to the work and the date the
work was performed. A notice required under this subparagraph
must be in writing and must be in a form established by the
Department of Transportation by rule.
(C) Make an odometer disclosure in a form required by the
department by rule and submit the disclosure to the department
within 10 days of completing the work.
(2) The owner or any subsequent purchaser of a vehicle may
bring an action in an appropriate court of this state against any
person who violates this section and may recover from the person
an amount of $500 or twice the actual damages caused by the
violation, whichever is greater { - , plus costs and reasonable
attorney fees - } . Only a single recovery is permitted under
this subsection for any single violation of this section. { +
The court may award reasonable attorney fees to the prevailing
party in an action under this section. + }
(3) A person is not subject to the requirements for work
performed on vehicles that are exempt from odometer disclosure
requirements under ORS 803.102.
(4) The offense described in this section, unlawful repair of
an odometer, is a Class C misdemeanor.
SECTION 139. { + The unit and section captions used in this
Act are provided only for convenience in locating provisions of
this Act and do not become part of the statutory law of this
state or express any legislative intent in the enactment of this
Act. + }
SECTION 140. { + The amendments to statutes and the Oregon
Rules of Civil Procedure by sections 1 to 138 of this Act apply
only to actions and proceedings that are commenced on or after
the effective date of this Act. + }
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