Bank v. Fort

• Decision Date: 13 April 2011
• Docket Number: No. C074503CV; A140485.
• Citation: 255 P.3d 508,242 Or.App. 166
• Parties: CAPITAL ONE BANK, successor-in-interest to Capital One, F.S.B., Plaintiff–Respondent,v.John W. FORT, Defendant–Appellant.
• Court: Oregon Court of Appeals

242 Or.App. 166

255 P.3d 508

CAPITAL ONE BANK, successor-in-interest to Capital One, F.S.B., Plaintiff–Respondent,

v.John W. FORT, Defendant–Appellant.

No. C074503CV; A140485.

Court of Appeals of Oregon.

Argued and Submitted May 27, 2010.Decided April 13, 2011.

Craig P. Colby argued the cause for appellant. On the briefs was Bret Knewtson.Jamie Forbes argued the cause and filed the brief for respondent.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.ARMSTRONG, J.

Defendant appeals a supplemental judgment, assigning error to the trial court's refusal to award him his requested attorney fees. Defendant contends that the court erred in deciding that the choice-of-law provision in the contract between plaintiff and defendant required the court to apply Virginia law to the contract's one-sided attorney-fee provision rather than Oregon law, which, pursuant to ORS 20.096 (2007),¹ would have made the right to recover prevailing party attorney fees under the attorney-fee provision reciprocal and entitled defendant, as the prevailing party in the action, to an award of attorney fees. We agree with defendant and, accordingly, reverse and remand.

The relevant facts are undisputed. Defendant, a resident of Oregon, established a credit account with plaintiff, a Virginia-chartered bank. Plaintiff issued a credit card to defendant with a copy of a cardholder agreement stating the terms of his use of the account. The agreement provided that defendant would pay plaintiff's attorney fees incurred to collect any amount defendant owed under the agreement “[t]o the extent permitted by law.” It also included a choice-of-law provision that provided that the agreement would “be governed by Virginia law and Federal law.”

Defendant defaulted on his payment obligations under the cardholder agreement, and plaintiff sued him for breach of contract in Washington County Circuit Court, requesting, among other things, an award of attorney fees. Defendant filed an answer asserting that plaintiff's claim was time barred under Virginia's statute of limitations and requesting his attorney fees under the contract pursuant to ORS 20.096. The trial court referred the case to court-annexed arbitration. Although he conceded liability for breach of the cardholder agreement, defendant prevailed on his statute-of-limitations defense. However, on the issue of defendant's entitlement to attorney fees, the arbitrator concluded that “the agreement is governed by Virginia law and Virginia law does not make attorney fees reciprocal or otherwise provide for an award of fees in these circumstances.”

Defendant filed with the trial court a written exception to the arbitrator's denial of attorney fees, arguing in part that the public policy interest of Oregon in making the right to recover prevailing party attorney fees under one-sided attorney-fee provisions reciprocal, as reflected by the enactment of ORS 20.096, is so strong that that statute should apply to the attorney-fee provision in the parties' agreement despite the choice-of-law provision. In response, plaintiff argued that defendant could not rely on Virginia law under the choice-of-law provision to establish his statute-of-limitations defense and simultaneously seek to apply Oregon law to the attorney-fee provision. After a hearing, the court reasoned:

“[T]he issue does come down to whether or not [defendant's] public policy arguments trump the bargained-for contract. And, obviously, Oregon does have a strong public policy of protecting those who enter into contracts who are unequal in the bargaining process, and [ORS] 20.096 is intended to be a remedy to protect those people. But having read [ Seattle–First National Bank v. Schriber, 51 Or.App. 441, 625 P.2d 1370 (1981) ( Seattle–First ) ], I do not believe that this case comes up to the level where I can say that this applies.”

Accordingly, the court concluded that it did not have the authority to apply ORS 20.096 to the case and entered a supplemental judgment denying defendant's request for fees.

On appeal, defendant renews his argument that the application of Virginia law to the attorney-fee provision in the agreement would be contrary to the fundamental public policy of Oregon set forth in ORS 20.096. ² In response, plaintiff argues that Oregon's public policy encourages freedom of contract and that there is no policy reason to interfere with the parties' freedom to choose to apply Virginia law to the agreement's provisions. For the reasons that follow, we agree with defendant.

We review a trial court's judgment affirming or reversing an arbitrator's determination of a party's entitlement to attorney fees for legal error. Beers v. Jeson Enterprises, 165 Or.App. 722, 724, 998 P.2d 716 (2000). In deciding which state law to apply when construing the provisions of a contract, Oregon courts apply a comparative-interest approach on an issue-by-issue basis, Machado–Miller v. Mersereau & Shannon, LLP, 180 Or.App. 586, 592, 43 P.3d 1207 (2002), with the foundational premise that the intention of the parties to a contract controls a court's interpretation of it, Young v. Mobil Oil Corp., 85 Or.App. 64, 67, 735 P.2d 654 (1987).³ Accordingly, the parties may include a choice-of-law provision in a contract, which a court will enforce subject to certain restrictions that are described in the Restatement (Second) of Conflict of Laws § 187(2) (1971). Young, 85 Or.App. at 67–68, 735 P.2d 654. Section 187(2) provides:

“The law of the state chosen by the parties to govern their contractual rights and duties will be applied, * * * unless either

“(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or

“(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.”

Because defendant does not argue that subsection (a) is relevant in this case, the determinative inquiry is whether subsection (b) establishes that Oregon law is applicable to the attorney-fee provision of the cardholder agreement.

As applied in this case, that inquiry entails three separate questions: (1) whether applying Virginia law, which permits one-sided attorney-fee provisions, would produce a result that conflicts with a fundamental public policy of Oregon, viz., the policy underlying ORS 20.096; (2) whether Oregon's interest in making the parties' contractual right to recover prevailing party attorney fees reciprocal is materially greater than Virginia's interest in the matter; and (3) whether, in the absence of the choice-of-law provision, Oregon law would apply. See Machado–Miller, 180 Or.App. at 593, 43 P.3d 1207 (applying a similar three-part analysis to determine whether Oregon or California law applied to a noncompetition provision in an employment contract that had a choice-of-law provision). We address each in turn.

ORS 20.096 was enacted to overcome one-sided attorney-fee provisions in contracts by making reciprocal the right to recover prevailing party attorney fees in cases involving such provisions. Bliss v. Anderson, 36 Or.App. 559, 562, 585 P.2d 29 (1978), rev. den., 285 Or. 73 (1979). The drafters of ORS 20.096 were principally concerned with protecting Oregon consumers who enter into contracts with sellers of goods and services that give the sellers the unilateral right to an award of prevailing party attorney fees. Newell v. Weston, 156 Or.App. 371, 375, 965 P.2d 1039 (1998), rev. den., 329 Or. 318, 994 P.2d 123 (1999). As the Supreme Court concluded in McMillan v. Golden, 262 Or. 317, 320, 497 P.2d 1166 (1972):

“[T]he stated purpose of the bill [that became ORS 20.096] was directed to the inequality of bargaining power which is so common in many commercial transactions and to neutralize the position of the parties and provide that regardless of such a [one-sided attorney-fee] provision in a contract * * * the prevailing party would be entitled to attorney fees.”

(Internal quotation marks omitted.) The drafters, hoping to override any tactical advantage that might be enjoyed by parties favored by one-sided attorney-fee provisions, Carlson v. Blumenstein, 293 Or. 494, 500 n. 3, 651 P.2d 710 (1982), provided that the reciprocity created by the statute could not be waived by the parties to a contract and that “[a]ny provision in such a contract that provides for a waiver of attorney fees is void.” ORS 20.096(2) (emphasis added). Thus, the legislature made the policy choice that making the right to recover prevailing party attorney fees under contracts containing attorney-fee provisions reciprocal would trump the parties' freedom to contract. Here, the application of Virginia law effectively allows plaintiff and defendant to waive the reciprocity provided for in ORS 20.096 by entering a contract that entitles only plaintiff to attorney fees and chooses Virginia law as its governing law. Therefore, applying Virginia law would be irreconcilable with a fundamental policy of Oregon.

We turn next to the question of whether Oregon has a materially greater interest than Virginia in the outcome of the attorney-fee dispute in this case. In that regard, plaintiff essentially argues that Oregon's interest is not materially greater than Virginia's by pointing to cases involving awards of attorney fees under a contract in which we applied a foreign state's law and not ORS 20.096.

In Seattle–First, the plaintiff, a national banking association, brought an action in Oregon against the defendants to recover the unpaid balance on a promissory note, which was signed by the defendants when they were living in California and was then returned to the plaintiff in Washington....