Attorney Fees

ORS 20.096
Reciprocity of attorney fees and costs in proceedings to enforce contract


(1)

In any action or suit in which a claim is made based on a contract that specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the party that prevails on the claim shall be entitled to reasonable attorney fees in addition to costs and disbursements, without regard to whether the prevailing party is the party specified in the contract and without regard to whether the prevailing party is a party to the contract.

(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 that is entered into after September 9, 1971. Any provision in such a contract that provides for a waiver of attorney fees is void.

(3)

As used in this section and ORS 20.097 (Attorney fees and costs where defendant prevails in certain proceedings to enforce contract), “contract” includes any instrument or document evidencing a debt. [1971 c.202 §1; 1975 c.623 §3; 1979 c.735 §1; 1981 c.898 §20; 1983 c.527 §1; 2001 c.542 §§3,3a; 2009 c.285 §2]

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)

§§ 20.080 to 20.098

Law Review Citations

56 OLR 585 (1977)


Source

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Jun. 26, 2021