Chapter 020

 

      20.070

 

      See annotations under ORS 20.190.

 

      20.075

 

NOTES OF DECISIONS

 

      Factor consideration requirement applies to appellate courts. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), clarified 327 Or 185, 957 P2d 1200 (1998)

 

      Findings regarding attorney fees are adequate if sufficiently clear to permit meaningful appellate review of relevant facts and legal criteria relied upon. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 185, 957 P2d 1200 (1998)

 

      In assessing whether parties and attorneys were reasonable and diligent in pursuing settlement of dispute, court may evaluate offer of settlement unless offer was made during mediation process. Bidwell and Bidwell, 173 Or App 288, 21 P3d 161 (2001)

 

      Lack of findings does not permit reversal on appeal of attorney fees award where opposing party fails to tender specific objections to trial court identifying issues to be considered regarding award. Gillies and Gillies, 175 Or App 460, 28 P3d 1244 (2001)

 

      In determining whether requested hourly rate for attorney fees is reasonable, federal district court for Oregon uses Oregon State Bar Economic Survey as initial benchmark. Roberts v. Interstate Distributor Co., 242 F. Supp. 2d 850 (D. Or. 2002)

 

      In determining objective reasonableness of claims and defenses asserted by party, court may consider only conduct during proceeding, not conduct giving rise to proceeding. Niman and Niman, 206 Or App 400, 136 P3d 1186 (2006)

 

      Trial court’s reduction of requested attorney fees that are otherwise reasonable must be supported by rational nexus between factor that serves as basis of reduction, underlying circumstances that give rise to reduction and amount of reduction. Grisby v. Progressive Preferred Insurance Co., 233 Or App 210, 225 P3d 101 (2010)

 

      20.077

 

NOTES OF DECISIONS

 

      Where action involves multiple claims, court must determine prevailing party and attorney fee award on claim-by-claim basis rather than using net judgment approach. Robert Camel Contracting, Inc. v. Krautscheid, 205 Or App 498, 134 P3d 1065 (2006)

 

      20.080 to 20.098

 

LAW REVIEW CITATIONS: 56 OLR 585 (1977)

 

      20.080

 

NOTES OF DECISIONS

 

      Recovery of attorney fees as costs under this section is not restricted by limitation otherwise imposed by [former] ORS 20.040 (5). Bivvins v. Unger, 263 Or 239, 501 P2d 1262 (1972)

 

      Notice which states that the plaintiff will request attorney fees under this section is sufficient to inform the defendant that plaintiff’s claim would be $1000 or less. Landers v. E. Texas Motor Freight Lines, 266 Or 473, 513 P2d 1151 (1973)

 

      Plaintiff should recover attorney fees so long as his demand is greater than $1000 and the judgment is greater than defendant’s offer of settlement. Landers v. E. Texas Motor Freight Lines, 266 Or 473, 513 P2d 1151 (1973)

 

      Award of attorney fees was improper in suit to establish easement in land because suit was equitable in nature. Rose v. Rose and Freeman, 279 Or 27, 566 P2d 180 (1977)

 

      Where original complaint set forth three alternative theories of recovery which would not have permitted recovery of more than $1,000, court was authorized to award attorney fees to prevailing plaintiffs. Barnes v. Bob Godfrey Pontiac, 41 Or App 745, 598 P2d 1289 (1979), Sup Ct review denied

 

      Where defendant’s insurer was given more than one opportunity to settle for less than $1,000 before plaintiffs’ final demand letter, asking for more than $1,000, and where plaintiffs filed suit seeking $1,000 in damages and attorney fees, plaintiffs were entitled to recover attorney fees. Costley v. Holman, 45 Or App 501, 608 P2d 614 (1980)

 

      Where plaintiff sent notice to shop most familiar with plaintiff’s claim rather than to corporate headquarters, defendant received 10-day notice required by this statute. Castro v. Earl Sheib of Oregon, 65 Or App 179, 670 P2d 226 (1983)

 

      This section, in providing award of attorney fees to successful plaintiff seeking damages of less than $3,000 for injury to person or property, applies to claims for goods lost by interstate carrier. Troute v. Aero Mayflower Transit Co., 78 Or App 564, 718 P2d 745 (1986)

 

      Action based on fraudulent misrepresentations is “action for damages for injury or wrong to person or property” within meaning of this section. Farmer v. George, 80 Or App 120, 720 P2d 1328 (1986)

 

      Plaintiff can be awarded attorney fees in contract action when contractual violation causes injury to person or property. Barnes v. Lackner, 93 Or App 439, 762 P2d 1043 (1988)

 

      Defendant who prevails on counterclaim for $4000 or less “prevails in action” and is entitled to reasonable attorney fees. Bennett v. Minson, 309 Or 309, 787 P2d 481 (1990)

 

      Prevailing party is party for whom judgment is entered, not party with respect to whom trial court reduces arbitration award. Scholes v. Sipco Services & Marine, Inc., 103 Or App 503, 798 P2d 694 (1990)

 

      Defendant was not required to include attorney fees from prior action with tender of full amount of damages to avoid liability for attorney fees in lien foreclosure action. ASB Construction v. Bateman, 124 Or App 638, 863 P2d 516 (1993)

 

      Attorney fees were proper in suit for damages involving easement to land since primary relief granted was not equitable. Bunnell v. Bernau, 125 Or App 440, 865 P2d 473 (1993)

 

      Where suit pleads causes of action arising out of different operative facts, pleaded actions are to be aggregated in determining whether amount cap is exceeded. Steele v. A & B Automotive & Towing Service, Inc., 135 Or App 632, 899 P2d 1206 (1995)

 

      Notice requirement cannot be met by measuring “commencement of the action” from filing date of amended complaint. Rath v. Haycock, 137 Or App 456, 905 P2d 854 (1995)

 

      Where cross-complaints were merged, designation of prevailing party as defendant in merged action did not qualify party to seek attorney fees as defendant filing counterclaim. Rath v. Haycock, 137 Or App 456, 905 P2d 854 (1995)

 

      Amount of insurer’s separate claim against defendant for insurance benefit payment to plaintiff could not be added to amount of plaintiff’s claim to disqualify plaintiff from receiving attorney fees. Gish v. Lawless Roofing, 140 Or App 618, 915 P2d 487 (1996)

 

      Where no objection to pleadings is raised, mixture of legal and equitable claims in same count does not prevent award of attorney fees. Stephenson v. Pierson, 145 Or App 23, 929 P2d 329 (1996)

 

      “Amount pleaded” refers to allegation of damages only. Timber Service Co. v. Ellis, 163 Or App 349, 988 P2d 396 (1999)

 

      “Amount pleaded” is amount sought in pleading that is operative at time of judgment. Rodriguez v. The Holland, Inc., 328 Or 440, 980 P2d 672 (1999)

 

      Where plaintiff sent single demand for payment, then filed and prevailed on two actions consolidated for trial, plaintiff was entitled to attorney fees for one of two actions. Beers v. Jeson Enterprises, 165 Or App 722, 998 P2d 716 (2000)

 

      “Defendant” includes attorney or insurer acting as agent for defendant. Schwartzkopf v. Shannon the Cannon’s Window and Other Works, Inc., 166 Or App 466, 998 P2d 244 (2000)

 

      “Tender” includes offer of payment that contains condition upon which offering party has right to insist or that recipient has no right to refuse. Reed v. Jackson County Citizens League, 183 Or App 89, 50 P3d 1287 (2002), Sup Ct review denied

 

      Prelitigation offer to pay money conditioned upon discharge of disputed claim is “tender.” Fresk v. Kraemer, 185 Or App 582, 60 P3d 1147 (2003), aff’d 337 Or 513, 99 P3d 282 (2004)

 

      Where plaintiff fails to recover amount exceeding settlement offer made under ORCP 54E, offer cuts off recovery of attorney fees incurred after offer. Bell v. Morales, 207 Or App 326, 142 P3d 76 (2006), Sup Ct review denied

 

      Prelitigation demand must be made for same claim on which plaintiff prevailed at trial and provided to same defendant against whom plaintiff prevailed. Huntley v. Tri-Met, 210 Or App 269, 149 P3d 1268 (2006)

 

      Written demand must be made in manner reasonably calculated to apprise defendant of demand. Woods v. Carl Karcher Enterprises, Inc., 341 Or 549, 146 P3d 319 (2006)

 

      Oral communication cannot cure defect in written notice of claim. Johnson v. Swaim, 343 Or 423, 172 P3d 645 (2007)

 

      Plaintiff’s entitlement to attorney fees under this section is exception to ORCP 54E curtailment of attorney fees following post-filing offer of judgment by defendant. Powers v. Quigley, 345 Or 432, 198 P3d 919 (2008)

 

      Tender made on same day on which complaint is later filed qualifies as tender made prior to commencement of action. Kile/Coffey v. York, 234 Or App 358, 228 P3d 599 (2010)

 

      This statute does not govern claims for attorney fees where claimant prevailed in action for money had and received. Williamson v. Government Employees Insurance Co., 247 Or App 48, 270 P3d 260 (2011), Sup Ct review denied

 

      Requirement to issue pre-litigation demand letter of intent to collect attorney fees applies only to plaintiff that prevails in action, not to defendant that prevails on counterclaim. Halperin v. Pitts, 352 Or 482, 287 P3d 1069 (2012)

 

      As used in this section, “if known to the plaintiff” does not require delivery of demand to insurer that plaintiff is aware could be responsible for claim; rather, this section requires delivery of written demand to insurer that plaintiff knows is responsible for claim and thus, court erred in determining plaintiff was required to send written demand to all potential insurers that plaintiff was aware of, and denial of plaintiff’s request for attorney fees was improper. Marandas Family Trust v. Pauley, 286 Or App 381, 398 P3d 914 (2017), Sup Ct review denied

 

      20.082

 

NOTES OF DECISIONS

 

      Attorney fee entitlement is available for any qualifying claim based in contract, not only contracts that include principal and interest terms. McGarry v. Hansen, 201 Or App 695, 120 P3d 525 (2005), Sup Ct review denied

 

      Where claims are not of type excluded, amounts “due on the contract” include damages for breach of warranty and breach of contract. McGarry v. Hansen, 201 Or App 695, 120 P3d 525 (2005), Sup Ct review denied

 

      Where multiple claims for relief are based on same contract, trial court must aggregate those claims in determining whether to allow attorney fees. Carrillo v. City of Stanfield, 241 Or App 151, 255 P3d 491 (2011)

 

      “Tender” means offer of payment coupled either with no conditions or only with conditions upon which tendering party has right to insist. Barber v. Green, 248 Or App 404, 273 P3d 294 (2012)

 

      20.083

 

NOTES OF DECISIONS

 

      Contract is “void” if agreement is actually entered into but is unenforceable by reason of failure to comply with legal requirements. Dess Properties, LLC v. Sheridan Truck & Heavy Equipment, LLC, 220 Or App 336, 185 P3d 1113 (2008), Sup Ct review denied

 

      Provision applies to all actions where prevailing party is entitled to attorney fees under terms of applicable contract or statute, regardless of theory determining disposition of action. King v. Neverstill Enterprises, LLC, 240 Or App 727, 248 P3d 30 (2011)

 

      In contract action where defendant prevails on counterclaim for rescission of underlying contract, defendant is entitled to attorney fees. A&E Security and Electronic Solutions v. Fortalesa, 253 Or App 448, 290 P3d 861 (2012)

 

      Where losing defendant was not and did not claim to be party to contract to which prevailing plaintiff was party, defendant is not liable to plaintiff for attorney fees under contract even though prevailing plaintiff incorporated and joined in counterclaim by other defendants that included counterclaim for attorney fees against losing defendant. Sherwood Park Business Center, LLC v. Taggart, 267 Or App 217, 341 P3d 96 (2014)

 

      20.085

 

NOTES OF DECISIONS

 

      A landowner who successfully appeals the amount of damages awarded when his land is burdened by a way of necessity is entitled to attorney fees. Brookshire v. Johnson, 274 Or 19, 544 P2d 164 (1976)

 

      Where, in county court proceedings, landowner successfully opposed proposed way of necessity across her land, she was not entitled to award of attorney fees and costs under this section. Knudsen v. Clatsop County Bd. of Comm., 45 Or App 351, 608 P2d 581 (1980), Sup Ct review denied

 

      Where court found that there had not been inverse condemnation, and plaintiffs had all their land except that acquired by county by prescription, plaintiffs did not prevail and were not entitled to attorney fees. Laudahl v. Polk County, 46 Or App 765, 613 P2d 92 (1980), Sup Ct review denied

 

      20.094

 

NOTES OF DECISIONS

 

      Where, in creditor-debtor action, creditor was granted voluntary nonsuit before issue of debtor’s discharge in bankruptcy could be considered, it was not abuse of discretion for trial court to deny debtor award of attorney fees. Kozol v. Serean, 279 Or 267, 566 P2d 901 (1977)

 

      20.096

 

NOTES OF DECISIONS

 

      This section allows attorney fees to the prevailing party on either trial or appeal only in the event that the contract specifically provides for allowance of attorney fees to either party on either trial or appeal. McMillan v. Golden, 262 Or 317, 497 P2d 1166 (1972)

 

      Suit for reformation of land sale contract is an “action or suit on a contract” within the meaning of this section. Webb v. Culver, 265 Or 467, 509 P2d 1173 (1973)

 

      “At trial” is used to distinguish the trial from the appellate level and does not require a trial or hearing on the merits of a claim. Dean Vincent, Inc. v. Krishell Lab., Inc., 271 Or 356, 532 P2d 237 (1975)

 

      Defendant is the “prevailing party” in the case of a voluntary nonsuit since it terminates the case in defendant’s favor. Dean Vincent, Inc. v. Krishell Lab., Inc., 271 Or 356, 532 P2d 237 (1975)

 

      The trial court did not abuse its discretion in treating defendant’s motion for attorney fees, made after defendant had rested his case and the court had rendered a written opinion, as a motion to reopen the case and in subsequently awarding fees to defendant. Hiestand v. Wolfard, 272 Or 222, 536 P2d 520 (1975)

 

      An attorney suspended from the practice of law appearing in propria persona was held not entitled to attorney fees. Parquit Corp. v. Ross, 273 Or 900, 543 P2d 1070 (1975)

 

      Where no statute makes attorney fees available as costs of action, attorney fees must be sought by filing of petition prior to final judgment and not as part of costs. Gorman v. Boyer, 274 Or 467, 547 P2d 123 (1976)

 

      Where husband brought action against former wife on promissory note, dissolution decree was reopened and note awarded to wife, and she obtained summary judgment on issue of liability, wife was “prevailing party.” Garrison v. Cook, 280 Or 205, 570 P2d 646 (1977)

 

      This section provided no basis for attorney fees in tort action for damages arising from misrepresentation. Bliss v. Anderson, 36 Or App 559, 585 P2d 29 (1978), Sup Ct review denied

 

      Where neither enforcement nor breach of contract or settlement agreement was involved, this section was not basis for recovery of attorney’s fees. Bliss v. Anderson, 37 Or App 773, 588 P2d 112 (1978)

 

      Where contract and quantum meruit are pleaded as alternative theories to recovery, plaintiff is prevailing party if favorable judgment is rendered on either theory. American Petrofina v. D&L Oil Supply, 283 Or 183, 583 P2d 521 (1978); Petersen v. Fielder, 185 Or App 164, 58 P3d 841 (2002), Sup Ct review denied

 

      Since this section does not specify that attorney fees are to be set by the court, where there is a jury trial on the merits issue of attorney fees should be decided by jury. Nicoletti v. Damerow Ford Co., 40 Or App 587, 595 P2d 1286 (1979)

 

      Where conduct of prevailing party was such that a court of equity would consider him to have “unclean hands,” an award of attorney fees was improper. North Pacific Lumber Co. v. Oliver, 286 Or 639, 596 P2d 931 (1979)

 

      Where defendant obtained dismissal of suit against himself, he was “prevailing party” and was entitled to attorney fees even though he was not signatory to contract. Golden West Insulation, Inc. v. Stardust Investment Corp., 47 Or App 493, 615 P2d 1048 (1980)

 

      Where defendant’s “offer to compromise” pursuant to [former] ORS 17.055 was not offer to pay entire amount of judgment prayed for by plaintiff’s complaint, plaintiff was not “prevailing party” within meaning of this section and thus was not entitled to attorney fees. State ex rel Scholarship Comm. v. Magar, 288 Or 635, 607 P2d 167 (1980)

 

      In suit in equity, unless trial judge shall otherwise request, no party is required to present evidence on attorney fees for purposes of this section until trial court’s decision identifies prevailing party. Shipler v. Van Raden, 288 Or 735, 608 P2d 1162 (1980)

 

      Since award of attorney fees pursuant to this section is matter of substantive law and none of parties were Oregon residents at time of making of contract, Oregon had no real policy interest in applying this section and Washington law was properly applied. Seattle-First National Bank v. Schriber, 51 Or App 441, 625 P2d 1370 (1981)

 

      Where Court of Appeals remanded contract action for trial in district court because of lack of jurisdiction in circuit court, no “final judgment or decree” had been rendered so there was no basis for award of attorney fees. Flying Tiger Line v. Portland Trading Co., 290 Or 605, 624 P2d 117 (1981)

 

      Where contract between student and school provided for award of attorney fees if school brought action to recover unpaid fees, attorney fees could be awarded to student in action to enforce other provisions of the contract. Jewell v. Triple B. Enterprises, 290 Or 885, 626 P2d 1383 (1981)

 

      In action to enforce contract which included provision for payment of attorney fees incurred to enforce contract, only question to be determined in deciding which party was entitled to attorney fees on appeal was which party obtained the final judgment or decree in its favor and fact that one party had been successful in obtaining modification of judgment or decree of trial court was not relevant. U.S. Nat’l Bank v. Smith, 292 Or 123, 637 P2d 139 (1981)

 

      Where contractual provision for award of attorney fees was pleaded by plaintiff and defendant made it known that attorney fees would be sought, fact that responsive pleading had not been filed would not prevent defendant from recovering attorney fees. Wacker Siltronic Corp. v. Pakos, 58 Or App 40, 646 P2d 1366 (1982), Sup Ct review denied

 

      Where plaintiff prevailed on claim to recover deposit on contract to purchase real property and defendants were found to be entitled to actual damages, the result of which was a net judgment for plaintiff, plaintiff was the prevailing party and entitled to attorney fees. Illingworth v. Bushong, 61 Or App 152, 656 P2d 370 (1982), aff’d on other grounds, 297 Or 675, 688 P2d 379 (1984)

 

      Where plaintiffs were party “in whose favor final judgment or decree” was entered, they were “the prevailing party” even though their net award did not exceed amount of defendant’s offer under [former] ORS 17.055; overruling to extent of inconsistency, Webster v. General Motors Accep., 267 Or 304, 516 P2d 1275 (1973) and Wetzstein v. Hemstreet, 276 Or 623, 555 P2d 1243 (1976). Carlson v. Blumenstein, 293 Or 494, 651 P2d 710 (1982)

 

      Where alleged “tender” of money into court was not unconditional it was not a “tender” within meaning of this section. Mountain Shadow Homes v. Gray, 61 Or App 230, 656 P2d 383 (1983), Sup Ct review denied

 

      Where Oregon substantive law was not applied to case, provision of this section for payment of attorney fees to prevailing party was inapplicable. Mark v. Kanawha Banking and Trust Co., 575 F Supp 844 (1983)

 

      In concluding Oregon court would allow such claim, award of attorney fees of breach of franchise agreement claim to nonparty successfully defending against claim was proper. Shakey’s Inc. v. Covalt, 704 F2d 426 (1983)

 

      In action to reform lease agreement trial court had no discretion to refuse to award attorney fees against losing plaintiff on ground that “it would be wrong to burden plaintiff further with attorney’s fee”; awarding of attorney fees pursuant to contractual provisions is made mandatory by this statute. U.S. Natural Resources, Inc. v. Gray, 66 Or App 769, 676 P2d 912 (1984), Sup Ct review denied

 

      Provision in title insurance policy obligating title insurance company to pay attorney fees for litigation carried on by company for insured, or by insured with company authorization, does not provide basis for awarding attorney fees to company against third party in litigation brought against company by third party for slander of title. Glaser v. Rock Creek Country Club, 68 Or App 536, 683 P2d 114 (1984), Sup Ct review denied

 

      Although contracts provided for payment of attorneys’ fees, action was not within purview of this section if plaintiff sought to rescind contract and to determine applicability of bankruptcy laws to particular contracts. In Re Coast Trading Co., Inc., 744 F2d 686 (1984)

 

      Pursuant to 29 U.S.C. 1144(a), provision making contractual attorney fees available to any prevailing party is superseded by 29 U.S.C. 1132(g)(1), insofar as it relates to actions to enforce contributions to employee benefit plans. Vermeer v. Bunyard, 72 Or App 79, 695 P2d 57 (1985)

 

      Where lease provides for attorney fees to be awarded to lessor in any action it brings to enforce lease provisions, lessor is entitled to attorney fees upon prevailing in action brought by lessee to enforce lease provisions. Steidlmayer v. Salishan Properties, Inc., 74 Or App 417, 703 P2d 282 (1985), Sup Ct review denied

 

      Where both parties obtained relief court did not abuse its discretion in refusing to award attorneys’ fees under contract terms. Miller v. Safeco Title Ins. Co., 758 F2d 364 (1985)

 

      Where contract includes provision for attorney fees, party successfully defending by showing nonliability due to failure of condition precedent may be awarded attorney fees pursuant to contract. McLeod v. Fossi, 79 Or App 306, 719 P2d 57 (1986), Sup Ct review denied

 

      Implied easement claim was not “action or suit on contract” within meaning of this section simply because terms of land sale contract were relevant in determining whether grantor intended implied easement. King v. Talcott, 80 Or App 701 723 P2d 1058 (1986), Sup Ct review denied

 

      Reformation action was action on contract within meaning of this section. King v. Talcott, 80 Or App 701, 723 P2d 1058 (1986), Sup Ct review denied

 

      Where plaintiff’s cause of action is in tort, even if defendant raises contract issue as affirmative defense, no recovery of attorney fees is allowed because contract is incidental issue only. Worthington v. Lick, 783 F2d 1369 (1986)

 

      Where plaintiff filed action for declaration of rights under contract with defendant and court construed contested contract clauses in defendant’s favor, defendant was prevailing party and court erred in denying defendant’s request for attorney fees. Ladum v. City of Reedsport, 83 Or App 666, 733 P2d 66 (1987)

 

      In action for declaratory relief, plaintiff is not prevailing party merely because plaintiff receives declaration of rights; plaintiff is actually seeking favorable declaration. Ladum v. City of Reedsport, 83 Or App 666, 733 P2d 66 (1987)

 

      Where trial court did not award plaintiff entire amount prayed for, plaintiff did not succeed on its claim, defendants successfully defended against plaintiff’s claim and fact that judgment technically was entered in plaintiff’s favor was not dispositive of issue of which was prevailing party. Dennis’ Seven Dees Landscape v. Platt, 91 Or App 663, 756 P2d 683 (1988), Sup Ct review denied

 

      Federal labor law preempted normal operation of this section in action to collect contributions owed to labor-management benefit trust that contained provision for award of attorney fees to trust if trust prevailed and thus trust was entitled to fees for that portion of case on which it prevailed but defendant was not entitled to fees to extent it prevailed. Paddack v. L.W. Hembree Co., 96 Or App 150, 771 P2d 656 (1989)

 

      Because this section does not itself provide right to attorney fees but only for reciprocity of contractual rights, it does not require award of attorney fees to party who wins rescission since neither party can win attorney fees after rescinding. Niedermeyer v. Latimer, 307 Or 473, 769 P2d 771 (1989)

 

      Attorney fees are not allowed to prevailing party in action on contract if defendant tenders, subsequent to demand but prior to commencement of suit, an amount not less than damages awarded where amount of principal together with interest exceed $200. Moini v. Hewes, 96 Or App 549, 773 P2d 778 (1989)

 

      One party must be entitled to fees under terms of contract in order for another party to be similarly entitled to fees under this section. Lowenthal v. Stanley, 102 Or App 568, 795 P2d 595 (1990)

 

      Attorney fees need not be apportioned when they are incurred for representation on issue common to claim in which fees are proper and claim in which fees are not proper. Greb v. Murray, 102 Or App 573, 795 P2d 1087 (1990); Bennett v. Baugh, 164 Or App 243, 990 P2d 917 (1999), Sup Ct review denied

 

      General reference to other legal rights is not sufficiently specific to trigger specific contractual right to attorney fees. Hanson v. Signer Motors, Inc., 105 Or App 74, 803 P2d 1207 (1990)

 

      This section cannot be applied to defeat consumer protection purpose and underlying policies of federal act. Hanson v. Signer Motors, Inc., 105 Or App 74, 803 P2d 1207 (1990)

 

      Purchaser of hotel who brought fraud action against vendors chose to affirm contract by suing for money damages rather than rescission and could therefore be awarded attorney fees. Price v. Seydel, 961 F2d 1470 (1992)

 

      If appellate disposition effectively ends proceeding, appellate court may award attorney fees even though trial court has not entered judgment. Sheppard v. Smith, 118 Or App 475, 848 P2d 126 (1993)

 

      Where context indicated mandatory award to one party, “party justly entitled” was equivalent term to “prevailing party.” Quality Contractors, Inc. v. Jacobsen, 139 Or App 366, 911 P2d 1268 (1996), Sup Ct review denied

 

      Where attorney fee provision is applicable only to voided section of contract, provision is also void notwithstanding continuing validity of remainder of contract. Care Medical Equipment, Inc. v. Baldwin, 154 Or App 678, 963 P2d 85 (1998), aff’d 331 Or 413, 15 P3d 561 (2000)

 

      Party that prevails on contract claim is entitled to recover attorney fees regardless of whether party prevails in action as a whole. Newell v. Weston, 156 Or App 371, 965 P2d 1039 (1998), Sup Ct review denied

 

      Covenants, codes and restrictions applicable to properties within planned community constitute contract. Little Whale Cove Homeowners Association, Inc. v. Harmon, 162 Or App 332, 986 P2d 616 (1999)

 

      Where no damages are awarded in action that contains both claim and counterclaim, each party is prevailing party for claim or counterclaim that party successfully defended. Wilkes v. Zurlinden, 328 Or 626, 984 P2d 261 (1999)

 

      Where plaintiff obtains desired result of suit without effective court order granting relief, plaintiff does not qualify as prevailing party. Conifer Ridge Homeowners Association, Inc. v. Hayworth, 176 Or App 603, 32 P3d 929 (2001)

 

      Where losing defendant was not and did not claim to be party to contract to which prevailing plaintiff was party, defendant is not liable to plaintiff for attorney fees under contract even though prevailing plaintiff incorporated and joined in counterclaim by other defendants that included counterclaim for attorney fees against losing defendant. Sherwood Park Business Center, LLC v. Taggart, 267 Or App 217, 341 P3d 96 (2014)

 

LAW REVIEW CITATIONS: 9 WLJ 360 (1973); 35 WLR 119 (1999)

 

      20.098

 

NOTES OF DECISIONS

 

      Defendant who prevailed on breach of warranty counterclaim may recover attorney and expert witness fees under this section notwithstanding fact that plaintiff in action prevailed on breach of contract claim and received net judgment. Hamer v. Mayeda, 64 Or App 705, 669 P2d 811 (1983)

 

      20.105

 

NOTES OF DECISIONS

 

      Trial court did not err in failing to award attorney fees under this section where court concluded that it was enacted during pendency of action and could not be applied retroactively. Bahr v. Ettinger, 88 Or App 419, 745 P2d 807 (1987)

 

      On remand, where plaintiff filed appeal despite receiving advice that he had no claim and despite having every reason to know and understand that appeal had no basis in law or fact, court awarded attorney fees and costs to defendants. Tyler v. Hartford Insurance Group, 98 Or App 601, 780 P2d 755 (1989), Sup Ct review denied

 

      Findings on record are required to facilitate review of order concerning petitions for attorney fees. Tyler v. Hartford Insurance Group, 307 Or 603, 771 P2d 274 (1989)

 

      Where counsel for litigant is not party to proceedings, there is no authority to enter judgment against party’s attorney for attorney fees pursuant to this section. Cooper v. Maresh, 100 Or App 293, 786 P2d 220 (1990)

 

      Where petition for attorney fees contains only conclusory statement and does not demonstrate factual basis for findings, it is insufficient for determination. Soga v. Zimmerman, 100 Or App 363, 786 P2d 221 (1990)

      Where defendant rejected plaintiff’s offer of full amount of counterclaim on grounds that defendant wanted to see truth brought out at trial and defendant, without adequate grounds, appealed award of attorney fees, court awarded attorney fees for appeal. Carleton v. Lowell, 107 Or App 98, 811 P2d 642 (1991), Sup Ct review denied

 

      Repeated occurrences of willful disobedience of court orders can justify award of opposing party’s attorney fees for entire case. Dahl v. St. John, 152 Or App 748, 955 P2d 315 (1998), Sup Ct review denied

 

      Court may award attorney fees under this section and damages under ORS 305.437 in same case. Sesma v. Dept. of Revenue, 16 OTR 29 (2002)

 

      In determining whether claim asserted on appeal is frivolous, unreasonable or without foundation, so as to justify award of attorney fees, court may give consideration both to merits of original claim and to procedural or substantive developments during litigation. McCarthy v. Oregon Freeze Dry, Inc., 334 Or 77, 46 P3d 721 (2002)

 

      To qualify as “prevailing party,” party must have prevailed in proceeding generally, not merely on particular claim. Mantia v. Hanson, 190 Or App 36, 77 P3d 1143 (2003), Sup Ct review denied

 

      To determine whether there was objectively reasonable basis for taxpayer to assert claim, regular division of tax court considers whether claim was entirely devoid of legal or factual support based on substantive law governing claim at time taxpayer proceeded before that division. Patton v. Dept. of Revenue, 18 OTR 111 (2004)

 

      In determining whether to award attorney fees, tax court will determine: 1) if party is represented, whether reasonable attorney would know that each argument on appeal was not warranted under existing law or reasonable argument for extension, modification or reversal of law; 2) whether party’s position is entirely devoid of legal or factual support at time complaint is filed and thereafter; and 3) whether party has advanced at least one objectively reasonable claim, defense or ground for appeal. Patton II v. Dept. of Revenue, 18 OTR 256 (2005)

 

      Regular division of tax court may consider existence of reasoned decision by tax magistrate in determining whether party’s assertion of claim was objectively reasonable. Patton II v. Dept. of Revenue, 18 OTR 256 (2005)

 

LAW REVIEW CITATIONS: 20 WLR 483 (1984)

 

      20.107

 

NOTES OF DECISIONS

 

      This section does not limit attorney fees only to statutory claims. Plaintiff, who brought both common law and statutory claims, may collect attorney fees under this section. Kemp v. MasterBrand Cabinets, Inc., 257 Or App 530, 307 P3d 491 (2013)

 

      20.120

 

NOTES OF DECISIONS

 

      This section does not apply to judicial review of final order in contested case governed by Oregon’s Administrative Procedures Act. Shetterley, Irick & Shetterley v. Emp. Div., 302 Or 139, 727 P2d 117 (1986)

 

      Costs may be awarded against private party in workers’ compensation cases pursuant to this section. Compton v. Weyerhaeuser Co., 302 Or 366, 730 P2d 540 (1986)

 

      20.140

 

ATTY. GEN. OPINIONS: Applicability of exemption in small claims departments of district courts, exemption when defendant settles claim, (1972) Vol. 36, p 92

 

      20.160

 

NOTE: Repealed as of June 18, 2009

 

NOTES OF DECISIONS

 

      Federal district court must follow procedure established in this section so long as section does not conflict with federal rules, statutes or policies. In re Merrill Lynch Relocation Management, Inc., 812 F2d 1116 (1987)

 

      This section is not unconstitutional restriction of right to travel interstate under privileges and immunities clause of U.S. Constitution and does not infringe on fundamental right. In Re Merrill Lynch Relocation Management, Inc., 812 F2d 1116 (1987)

 

      20.180

 

NOTES OF DECISIONS

 

      In suit to foreclose mechanic’s lien, where trial court denied foreclosure of lien but awarded plaintiff $200 and also awarded $1000 in attorney fees to defendant as “prevailing party” and on day of trial defendant paid into court sum of $200 for “extra” work, defendant was prevailing party entitled to recover costs under this section, including attorney fees as provided by ORS 87.060. Cloyd v. McPherson, 283 Or 137, 582 P2d 423 (1978)

 

      20.190

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 20.070)

 

      Prevailing party fee cannot be included as part of costs incurred by state and chargeable to convicted criminal defendant. State v. Marino, 25 Or App 817, 551 P2d 131 (1976)

 

      When petition for review is denied, respondent has not prevailed on appeal and there is no basis for awarding costs. U-Cart Concrete v. Farmers Ins., 290 Or 151, 619 P2d 882 (1980)

 

In general

 

      Petitioners were not entitled to prevailing party fees under this section where after petitioners filed appeal in Court of Appeals Board of Parole withdrew orders appealed from and afforded petitioners relief sought from Court of Appeals. Stelljes/Dumler v. State Board of Parole, 307 Or 365, 769 P2d 177 (1989)

 

      Where agency withdraws order challenged on judicial review under Administrative Procedures Act, petitioner qualifies as prevailing party. Voelz Oil v. Oregon State Fire Marshal, 138 Or App 100, 907 P2d 251 (1995)

 

      Prevailing party fee is available in tax court only under specific tax court statutes, not general statute. Johnson v. Dept. of Revenue, 14 OTR 15 (1996)

 

      Prevailing party fee is available as part of costs incurred by state and chargeable to petitioner for post-conviction relief. Schelin v. Maass, 147 Or App 351, 936 P2d 988 (1997), Sup Ct review denied

 

      Availability of enhanced prevailing party fee is intended to penalize improper behavior, not to provide additional means of awarding attorney fees. Gough v. Vaughn, 151 Or App 536, 950 P2d 935 (1997)

 

      Single enhanced prevailing party fee may be divided among more than one prevailing party. Seida v. West Linn-Wilsonville School District 3JT, 169 Or App 418, 9 P3d 150 (2000)

 

      Award of costs and disbursements is not prerequisite to award of enhanced prevailing party fee. LeBrun v. Cal-Am Properties, Inc., 197 Or App 177, 106 P3d 647 (2005), Sup Ct review denied

 

      Appellate court first reviews trial court evaluation of listed factors to see whether determinations of law are correct and whether some evidence supports factual findings, then, if necessary, reviews trial court decision whether to award enhanced prevailing party fee for abuse of discretion. Shumake v. Foshee, 197 Or App 255, 105 P3d 919 (2005)

 

      Where plaintiff filed class action proceeding but proceeding was not certified as class action under ORCP 32, prevailing defendant was not entitled to prevailing party fees in proceeding because exception to recovery applies to proceedings either alleged or maintained as class action pursuant to ORCP 32. Curzi v. Oregon State Lottery, 286 Or App 254, 398 P3d 977 (2017), Sup Ct review denied

 

      20.220

 

NOTES OF DECISIONS

 

      This section applies both when party desires to appeal from judgment for costs and attorney fees and when appeal is from underlying judgment. Jansen v. Atiyeh, 302 Or 314, 728 P2d 1382 (1986)

 

      20.310

 

NOTES OF DECISIONS

 

When costs are allowed

 

      Court had discretion to award attorney fees under ORS 662.090 even if no costs or disbursements were awarded to any party under this section. Louisiana-Pacific v. Lumber and Sawmill Workers, 299 Or 525, 704 P2d 104 (1985)

 

      Prevailing on appeal, rather than commencing appeal, triggers right to court costs, because no right to court costs exists until party prevails. Fromme v. Fred Meyer, Inc., 306 Or 558, 761 P2d 515 (1988)

 

      Court erred in awarding costs incurred in first appeal because that authority lies with appellate court, not trial court. Malot v. Hadley, 102 Or App 336, 794 P2d 833 (1990)

 

      Plaintiff was entitled to award of costs under this section in appeal from award of damages under Anti-Price Discrimination Law even though defendant obtained substantial reduction of that award on appeal. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 311 Or 88, 806 P2d 123 (1991)

 

      Where court reverses summary judgment for defendant and remands for further proceedings, plaintiff is entitled to costs and disbursements on appeal. Akins v. Bucyrus-Erie Co., 118 Or App 471, 848 P2d 124 (1993)

 

      Authority to award costs and disbursements to respondent on denial for petition for review is not authority to award attorney fees to respondent. Bolte and Bolte, 349 Or 289, 243 P3d 1187 (2010)

 

Items recoverable

 

      This section does not authorize recovery of costs of appeal bond. State ex rel Roberts v. Duco-Lam, Inc., 74 Or App 253, 702 P2d 78 (1985)

 

      Prevailing party fee is available as part of costs incurred by state and chargeable to petitioner for post-conviction relief. Schelin v. Maass, 147 Or App 351, 936 P2d 988 (1997), Sup Ct review denied