ORS 20.190
Prevailing party fees

(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:

(a)

In the Supreme Court or Court of Appeals, on an appeal, $100.

(b)

In a circuit court:

(A)

When judgment is given without trial of an issue of law or fact or on an appeal, $85; or

(B)

When judgment is given after trial of an issue of law or fact, $105.

(c)

In a small claims department, a county court or justice court:

(A)

When judgment is given without trial of an issue of law or fact or on an appeal, $50; or

(B)

When judgment is given after trial of an issue of law or fact, $60.

(2)

In lieu of the prevailing party fee provided for in subsection (1) of this section, in any civil action or proceeding 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, $345; or

(B)

When judgment is given after trial of an issue of law or fact, $640.

(b)

In a small claims department, a county court or justice court:

(A)

When judgment is given without trial of an issue of law or fact, $117; or

(B)

When judgment is given after trial of an issue of law or fact, $135.

(3)

In addition to the amounts provided for in subsection (2) of this section, in any civil action or proceeding in a circuit court in which recovery of money or damages is sought, the court may award to the prevailing party 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)

Any award of attorney fees made to the prevailing party as part of the judgment.

(h)

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, or more than one prevailing party fee against a nonprevailing party regardless of the number of parties in the action, 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:

(a)

In the following proceedings:

(A)

A class action proceeding under ORCP 32.

(B)

A condemnation proceeding.

(C)

Proceedings under the provisions of ORS chapters 25, 107, 108, 109 and 110.

(b)

To a respondent in proceedings under ORS 30.866 (Action for issuance or violation of stalking protective order) or 163.730 (Definitions for ORS 30.866 and 163.730 to 163.750) to 163.750 (Violating a court’s stalking protective order) unless the court finds that the petitioner initiated the proceedings with malicious intent.

(7)

Mandatory arbitration under ORS 36.400 (Mandatory arbitration programs) to 36.425 (Filing of decision and award) does not constitute a trial of an issue of law or fact for the purposes of this section. [1981 c.898 §18a; 1987 c.725 §6; 1989 c.1007 §1; 1995 c.618 §7; 1997 c.249 §13; 1997 c.801 §§56,56a; 2005 c.702 §93; 2007 c.860 §16; 2011 c.595 §170a; 2013 c.685 §44; 2017 c.663 §25; 2019 c.342 §1; 2019 c.605 §27]

Source: Section 20.190 — Prevailing party fees, https://www.­oregonlegislature.­gov/bills_laws/ors/ors020.­html.

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

20.075
Factors to be considered by court in awarding attorney fees 20.077
Determination of prevailing party 20.080
Attorney fees for certain small tort claims 20.082
Attorney fees for small contract claims 20.083
Award of attorney fees under void contract, under unenforceable contract or to person who is not party to contract 20.085
Costs and attorney fees in inverse condemnation proceedings 20.094
Attorney fees in actions or suits in which discharge in bankruptcy asserted 20.096
Reciprocity of attorney fees and costs in proceedings to enforce contract 20.097
Attorney fees and costs where defendant prevails in certain proceedings to enforce contract 20.098
Attorney fees and compensation of expert witnesses in certain proceedings for breach of warranty 20.105
Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis 20.107
Attorney and expert witness fees and other costs on claim of unlawful discrimination 20.115
Service expenses recoverable as costs and disbursements 20.120
Costs on review of decision of officer, tribunal, or court of inferior jurisdiction 20.125
Assessment of costs and attorney fees against attorney causing mistrial 20.130
Proceeding to which state or public corporation is party 20.140
State and certain public corporations not required to advance costs 20.150
Recovery of costs and disbursements when party represented by another 20.180
Effect of tender as to costs 20.190
Prevailing party fees 20.220
Appeal on attorney fees and costs 20.310
Costs and disbursements in Supreme Court or Court of Appeals 20.320
Statement of costs and disbursements 20.330
Costs and disbursements in cases of original jurisdiction 20.340
Contingent fee agreement
Green check means up to date. Up to date

Current through early 2024

§ 20.190’s source at oregon​.gov