Damages upon affirmance of judgment
Source:
Section 19.445 — Damages upon affirmance of judgment, https://www.oregonlegislature.gov/bills_laws/ors/ors019.html.
Notes of Decisions
Purpose of section
The purpose of this section is to prevent the taking of an appeal where there is no probable cause therefor and to impose a penalty where the purpose of the appeal is for delay. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)
Appellate court shall impose ten percent damages for delay if it determines that judgment below was for recovery of money or personal property, or value thereof; appellate court affirms judgment; and court finds that there was no probable cause for taking appeal. Broyles v. Brown, 295 Or 795, 671 P2d 94 (1983)
Court awarded damages under this section 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. Carleton v. Lowell, 107 Or App 98, 811 P2d 642 (1991), Sup Ct review denied
“Probable cause for taking the appeal”
Even where there is but slight merit to the appeal, damages under this section are inappropriate. Employers’ Fire Ins. v. Love It Ice Cream, 64 Or App 784, 670 P2d 160 (1983)
Term “probable cause for appeal” means there is presented a case in which appellant has assigned or may assign grounds that are open to doubt or are debatable, or over which rational, reasonable or honest discussion may arise. Broyles v. Brown, 295 Or 795, 671 P2d 94 (1983); Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied
Damages for taking appeal without probable cause may be awarded under this section even where monetary relief in underlying judgment consists only of costs and attorney fees. Cooper v. Maresh, 98 Or App 371, 779 P2d 200 (1989), Sup Ct review denied; Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied
Damages for delay
Where 10 percent statutory damages are assessed under this section, appellant’s surety is also liable therefor. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)
The term “damages for delay” was not intended to be limited to interest on a money judgment or other measurable damages resulting from the delay of an appeal. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)
Ten percent statutory damages for frivolous appeal may be levied whether undertaking on appeal is cost bond or supersedeas bond. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)
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