Cooper v. Maresh

• Decision Date: 31 January 1990
• Citation: 100 Or.App. 293,786 P.2d 220
• Parties: Gary C. COOPER, Appellant, v. Paul MARESH, Respondent, and Broadway Cab Cooperative, Respondent. A8610-06137; CA A49253.
• Court: Oregon Court of Appeals

Page 220

786 P.2d 220

100 Or.App. 293

Gary C. COOPER, Appellant, v. Paul MARESH, Respondent and Broadway Cab Cooperative, Respondent.

A8610-06137; CA A49253.

Court of Appeals of Oregon.

Jan. 31, 1990.

Roger Gerber, Portland, for appellant.

Ronald Allen Johnston and Johnston & Augustson, P.C., Portland, for respondent Paul Maresh.

Nolan M. Shishido and Kell, Alterman & Runstein, Portland, for respondent Broadway Cab Co-op.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

After our decision in this case, Cooper v. Maresh, 98 Or.App. 371, 779 P.2d 200, rev. den. 308 Or. 592, 784 P.2d 1099 (1989), respondents Maresh and Broadway Cab Cooperative (Broadway) separately petitioned for attorney fees. We allow attorney fees to both respondents. ¹

Maresh requests fees pursuant to the contract between him and plaintiff, which expressly permits recovery of attorney fees on appeal. He also asks for fees pursuant to ORS 20.105. ² Under either the contract or the statute, Maresh is entitled only to reasonable attorney fees, ORCP 68A(1); consequently, the amount awarded under either authority would be the same. We award $5,491.15 to Maresh, pursuant to the contract.

Maresh also asks that the judgment for attorney fees be joint and several against plaintiff and his attorney Roger Gerber. Attorney fees are awarded only against a party to the proceedings. Counsel for a litigant is not a party, and there is no authority to enter a judgment against a party's attorney for attorney fees awarded pursuant to this contract or ORS 20.105.

Broadway petitions for attorney fees pursuant to ORS 20.105:

"(1) In any civil action, suit or other proceeding in a district court, a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court may, in its discretion, award reasonable attorney fees appropriate in the circumstances to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party wilfully disobeyed a court order or acted in bad faith, wantonly or solely for oppressive reasons."

We find, as fact, that plaintiff's appeal involving Broadway was filed in "bad faith, wantonly or solely for oppressive reasons." See Tyler v. Hartford Insurance Group, 307 Or. 603, 771 P.2d 274 (1989); Tyler v. Hartford Insurance Group, 98 Or.App. 601, 780 P.2d 755, rev. den. 308 Or. 660, 784 P.2d 1102 (1989).

Broadway was not a party to the proceedings in the trial court. Plaintiff's complaint was based essentially on an agreement between him and Maresh for the purchase and sale of an interest in a taxi cab. During discovery, plaintiff served nine subpoenas for depositions on board of directors members, managers and various persons associated with Broadway. It appeared that he was seeking information relating to his expulsion from the association, which was clearly not relevant to the action between him and Maresh. Broadway moved for a protective order. Plaintiff did not file a response to the motion, and the trial court granted it. Plaintiff named Broadway as a respondent on appeal and made five assignments of error regarding it. The...