Chapter 417 Oregon Laws 2001

AN ACT

HB 2374

Relating to attorney fees; creating new provisions; amending ORS 20.075 and 20.096 and ORCP 70 A; and repealing ORS 20.015.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (1) In any action or suit in which one or more claims are asserted for which an award of attorney fees is either authorized or required, the prevailing party on each claim shall be determined as provided in this section. The provisions of this section apply to all proceedings in the action or suit, including arbitration, trial and appeal.

(2) For the purposes of making an award of attorney fees on a claim, the prevailing party is the party who receives a favorable final judgment, decree or arbitration award on the claim. If more than one claim is made in an action or suit for which an award of attorney fees is either authorized or required, the court or arbitrator shall:

(a) Identify each party that prevails on a claim for which attorney fees could be awarded;

(b) Decide whether to award attorney fees on claims for which the court or arbitrator is authorized to award attorney fees, and the amount of the award;

(c) Decide the amount of the award of attorney fees on claims for which the court or arbitrator is required to award attorney fees; and

(d) Enter a judgment that complies with the requirements of ORCP 70 A.

(3) Notwithstanding subsection (2) of this section, upon appeal of a judgment or decree in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment or decree.

(4) This section does not create a claim to an award of attorney fees in any action or suit in which the court or arbitrator is not otherwise authorized or required to make an award of attorney fees by contract or other law.

SECTION 2. ORCP 70 A is amended to read:

A Form. Every judgment shall be in writing plainly titled as a judgment and set forth in a separate document. A default or stipulated judgment may have appended or subjoined thereto such affidavits, certificates, motions, stipulations, and exhibits as may be necessary or proper in support of the entry thereof.

A(1) Content. No particular form of words is required, but every judgment shall:

A(1)(a) Specify clearly the party or parties in whose favor it is given and against whom it is given and the relief granted or other determination of the action.

A(1)(b) Be signed by the court or judge rendering such judgment or, in the case of judgment entered pursuant to Rule 69 B(1), by the clerk.

A(2)(a) Money judgment; contents. Money judgments are judgments that require the payment of money, including judgments for the payment of costs or attorney fees. The requirements of this subsection are not jurisdictional for purposes of appellate review. Money judgments shall include all of the following:

A(2)(a)(i) The name and address of each judgment creditor and the name, address and phone number of each creditor’s attorney, if any.

A(2)(a)(ii) The name of each judgment debtor and, if known, the address, date of birth, Social Security number and driver license number for each judgment debtor, the state of issuance for each judgment debtor’s driver license and the name of each judgment debtor’s attorney.

A(2)(a)(iii) The name of any person or public body known to the judgment creditor, other than the judgment creditor’s attorney, who is entitled to any portion of a payment made on the judgment.

A(2)(a)(iv) The amount of the judgment.

A(2)(a)(v) The interest owed to the date of the judgment, either as a specific amount or as accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

A(2)(a)(vi) Post-judgment interest accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

A(2)(a)(vii) For judgments that accrue on a periodic basis, any accrued arrearages, required further payments per period and accrual dates.

A(2)(a)(viii) If the judgment awards costs and disbursements or attorney fees, that they are awarded [and], any specific amounts awarded, a clear identification of the specific claims for which any attorney fees are awarded and the amount of attorney fees awarded for each claim. This subparagraph does not require inclusion of specific amounts where such will be determined later under Rule 68 C.

A(2)(b) Form. To comply with the requirements of paragraph A(2)(a) of this rule, the requirements in that paragraph must be presented in a manner that complies with all of the following:

A(2)(b)(i) The requirements must be presented in a separate, discrete section immediately above the judge’s signature if the judgment contains more provisions than just the requirements of paragraph A(2)(a) of this rule.

A(2)(b)(ii) The separate section must be clearly labeled at its beginning as a money judgment. On or after January 1, 1994, if the money judgment includes a child support obligation, the label must so indicate.

A(2)(b)(iii) The separate section must contain no other provisions except what is specifically required by this rule for judgments and, if applicable, by ORS 24.290 for the payment of money.

A(2)(b)(iv) The requirements under paragraph A(2)(a) of this rule must be presented in the same order as set forth in that paragraph.

A(3) If the proposed judgment does not comply with the requirements in subsections A(1) and (2) of this rule, it shall not be signed by the judge. If the judge signs the judgment, it shall be entered in the register whether or not it complies with the requirements in subsections A(1) and (2) of this rule.

SECTION 3. ORS 20.075 is amended to read:

20.075. (1) A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees [are] is authorized by statute and in which the court has discretion to decide whether to award attorney fees:

(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.

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

(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties 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 an award of attorney fees [are] is authorized or required 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.

SECTION 4. ORS 20.096 is amended to read:

20.096. (1) In any action or suit in which a claim is made based 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 that prevails on the claim, 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] that is entered into after September 9, 1971. Any provision in such a contract [which] that provides for a waiver of attorney fees is void.

(3) If the plaintiff prevails in any action or suit on a claim based on a contract [which] that expressly provides for the award of attorney fees, [where] and the amount of principal together with interest due on [such] the 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] on a claim 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) 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)] (5) As used in this section and ORS 20.097,”contract” includes any instrument or document evidencing a debt.

SECTION 5. ORS 20.015 is repealed.

Approved by the Governor June 18, 2001

Filed in the office of Secretary of State June 18, 2001

Effective date January 1, 2002

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