§ 46.2 Attorney Fees

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 46.2 ATTORNEY FEES

§ 46.2-1 General Considerations

Oregon courts generally follow the American rule that each party bears its own attorney fees. In general, a party may not recover attorney fees absent a statutory or contractual right. Swett v. Bradbury, 335 Or 378, 381, 67 P3d 391 (2003); Tualatin Valley Builders Supply, Inc. v. TMT Homes of Or., Inc., 179 Or App 575, 584, 41 P3d 429 (2002); Autolend, IAP, Inc. v. Auto Depot, Inc., 170 Or App 135, 139, 11 P3d 693 (2000), rev den, 332 Or 240 (2001). Awarding attorney fees may be mandatory or discretionary, as provided by law or contract.

When preparing a pleading, a lawyer should determine whether any basis for claiming attorney fees exists under law or contract. For example, attorney fees are available in securities claims under ORS 59.115(10), ORS 59.127(9), and ORS 59.137(4), unlawful trade practices claims under ORS 646.638(3), and certain landlord-tenant actions under ORS 90.510(8). ORS chapter 20 also provides for attorney fees in a variety of actions.

PRACTICE TIP: Failing to assert a right to attorney fees at the earliest possible time may prevent a party from recovering attorney fees. Therefore, it is important to determine whether attorney fees are available at the outset of every case. The basis for an attorney fee award should be asserted in the body of the pleading and in the prayer.

NOTE: Pro se litigants generally may not recover attorney fees. Pendell v. Dep't of Revenue, 315 Or 608, 616, 847 P2d 846 (1993); Parquit Corp. v. Ross, 273 Or 900, 902, 543 P2d 1070 (1975). However, a self-represented attorney may recover "the reasonable value of the legal services that [the attorney] performed on [his or her] own behalf." Colby v. Gunson, 349 Or 1, 5, 9, 238 P3d 374 (2010) (interpretingformer ORS 192.490(3) (2009), renumbered ORS 192.431(3) (2017), which provides that any person who prevails in a suit seeking the right to inspect or to receive a copy of a public record is entitled to reasonable attorney fees); Moro v. State, 360 Or 467, 483, 384 P3d 504 (2016) (awarding fees under common-fund and substantial-benefit doctrines to self-represented lawyers).

§ 46.2-2 Prevailing Party

ORS 20.077 controls which party is the prevailing party for purposes of attorney fees. The prevailing party is the party "who receives a favorable judgment or arbitration award on the claim." ORS 20.077(2). Because ORS 20.077 requires courts to determine the prevailing party on a claim-by-claim basis, it is possible that there will be more than one prevailing party and therefore more than one attorney fee award. ORS 20.077; Robert Camel Contracting, Inc. v. Krautscheid, 205 Or App 498, 504, 134 P3d 1065 (2006); Lemargie v. Johnson, 212 Or App 451, 454 n 3, 157 P3d 1284 (2007).

Pursuant to ORS 20.077(2), if two or more claims are asserted for which an award of attorney fees is permitted or required, the court must

(1) "[i]dentify each party that prevails on a claim for which attorney fees could be awarded;

(2) decide whether to award attorney fees on claims for which such an award is discretionary, and determine the amount of the award;

(3) decide the amount of the award of attorney fees on claims for which the court is required to award attorney fees; and

(4) enter a judgment that complies with ORS 18.038 and ORS 18.042.

NOTE: ORS 20.077 superseded Meduri Farms, Inc. v. Robert Jahn Corp., 120 Or App 40, 44, 852 P2d 257 (1993), in which the court held that "[w]hen both sides seek monetary damages by way of claim and counterclaim, and both claims prevail, the prevailing party is the party who receives the net award." Meduri Farms is still good law, however, for the rule that a party need not obtain monetary relief to be a prevailing party. Meduri Farms, Inc., 120 Or App at 44.

"To determine who is the prevailing party on each claim, a court must weigh 'what was sought by each party against the result obtained.'" Beggs v. Hart, 221 Or App 528, 537-38, 191 P3d 747 (2008) (quoting Lawrence v. Peel, 45 Or App 233, 243, 607 P2d 1386 (1980)).

A statute authorizing an award of attorney fees if the court finds "in favor of" a party means something different than a statute authorizing an award of attorney fees to the "prevailing party." Kaib's Roving R.Ph. Agency, Inc. v. Emp't Dep't, 338 Or 433, 442-44, 111 P3d 739 (2005). Under Oregon's Administrative Procedures Act, a petitioner may be awarded attorney fees under ORS 183.497 if "the court finds in favor of the petitioner," but "finding 'in favor of' a party is [not] equivalent to a finding that a party is a 'prevailing party.'" Kaib's Roving R.Ph. Agency, Inc., 338 Or ar 442-44. Prevailing party is a term of art defined by ORS 20.077. "Clearly, the legislature knew how to refer to a 'prevailing party' when that was what it intended." Kaib's Roving R.Ph. Agency, Inc., 338 Or at 443.

Several decisions of the court of appeals assume that the definition of prevailing party in ORS 20.077 applies to an award under ORS 20.190 (amounts recoverable by prevailing party), which is available only if a party "has a right to recover costs and disbursements." See Hamlin v. Hampton Lumber Mills, Inc., 227 Or App 165, 169-71, 205 P3d 70 (2009), rev'd on other grounds, 349 Or 526, 246 P3d 1121 (2011) (designating the plaintiff as the prevailing party under ORS 20.077 and stating that, therefore, he automatically recovers the filing fee and will also be awarded the prevailing party fee); Barbara Parmenter Living Tr. v. Lemon, 345 Or 334, 347, 194 P3d 796 (2008) (assuming that the party who is eligible for an award of attorney fees as the prevailing party would also be eligible for an award of prevailing party fees).

The court of appeals decisions that assume the definition of prevailing party in ORS 20.077 applies to other statutes may be used to argue that the definition in ORS 20.077 should also apply to ORCP 68's use of "prevailing party." Applying the definition of prevailing party in ORS 20.077 to ORCP 68 is consistent with opinions issued before the enactment of ORS 20.077. The court of appeals has applied the definition of prevailing party found in former ORS 20.096(5)—which was repealed when ORS 20.077 was enacted—to awards of costs and disbursements. See Wade v. Mahler, 167 Or App 350, 358, 1 P3d 485, rev den, 331 Or 334 (2000); Autolend, IAP, Inc. v. Auto Depot, Inc., 170 Or App 135, 142, 11 P3d 693 (2000), rev den, 332 Or 240 (2001). It is also consistent with the general notion that it is appropriate to use the same definition for purposes of awarding costs and attorney fees. See Selective Servs. v. AAA Liquidating & Auction Serv., Inc., 126 Or App 74, 78, 867 P2d 545 (1994) (the same definition of prevailing party that applies to awards of attorney fees should apply for purposes of cost awards, "if only for the sake of consistency").

§ 46.2-3 Procedure

Most of the procedures that govern an attorney fee award are in ORCP 68. These procedures are discussed in more detail in § 46.2-3(a) to § 46.2-3(e)(2).

§ 46.2-3(a) Pleading

ORCP 68 C governs the pleading, proof, and award of attorney fees. The rule prohibits an award of attorney fees unless the party seeking fees alleges a right to recover fees in compliance with ORCP 68 C(2). The rule requires that a party seeking attorney fees must "allege the facts, statute, or rule that provides a basis for the award of fees in a pleading filed by that party." ORCP 68 C(2)(a).

A party need not plead a specific amount of attorney fees but may simply request an award of "reasonable attorney fees." ORCP 68 C(2)(c).

In addition, a party need not cite the specific statute or contractual provision authorizing or requiring an award of fees if the party alleges facts that "provide a basis for an award of fees, the parties have fairly been alerted that attorney fees would be sought and no prejudice would result." In re Marriage of Page, 103 Or App 431, 434, 797 P2d 408 (1990); Rymer v. Zwingli, 240 Or App 687, 691, 247 P3d 1246, rev den, 350 Or 716 (2011); Page v. Parsons, 249 Or App 445, 464, 277 P3d 609 (2012).

If the original pleading filed by a party fails to allege a basis for an award of attorney fees, it may be enough for the party to assert the basis in an amended pleading. See Htaike v. Sein, 269 Or App 284, 299-301, 344 P3d 527, rev den, 357 Or 595 (2015) (permitting amendment of pleading after trial to assert a basis for attorney fees); Georgetown Realty, Inc. v. Home Ins. Co., 102 Or App 611, 618, 796 P2d 651 (1990), rev'd on other grounds, 313 Or 97, 831 P2d 7 (1992).

A party may allege a right to attorney fees after the opposing party has filed a notice of voluntary dismissal if "the party did not have an appropriate opportunity to assert the right before the notice was filed." Oakleaf Mobile Home Park v. Mancilla, 189 Or App 458, 462-63, 75 P3d 908 (2003), rev den, 336 Or 376 (2004).

"If a party does not file a pleading but instead files a motion or a response to a motion, a right to attorney fees shall be alleged in the party's motion or response, in similar form to the allegations required in a pleading." ORCP 68 C(2)(b). A party who alleges a right to fees in a supporting memorandum, but fails to do so in the motion itself, has not complied with ORCP 68 C(2)(b), and the court therefore may not award attorney fees to that party if it prevails on its motion. Mulier v. Johnson, 332 Or 344, 351, 29 P3d 1104 (2001). However, a party who fails to allege a right to fees in a dispositive motion is not barred from recovering attorney fees if the motion is denied and the party subsequently files a pleading in which it alleges a right to recover attorney fees. Wiper v. Fawkes, 198 Or App 331, 339, 109 P3d 798 (2005).

§ 46.2-3(b) Statement of Attorney Fees, Objections, and Hearing

For information about requesting or objecting to attorney fees and costs, see § 46.1-3(a) to § 46.1-3(b) detailing the procedure for requesting and objecting to costs and disbursements.

§ 46.2-3(c) Order and Judgment

On a...