Lord v. Pettibon
| Decision Date | 01 May 1991 |
| Citation | 810 P.2d 863,107 Or.App. 18 |
| Parties | Page 863 810 P.2d 863 107 Or.App. 18 Steven G. LORD, Respondent, and Daniel E. Beeson, Plaintiff, v. Burl R. PETTIBON, Appellant. Burl R. PETTIBON, Appellant, v. Steven G. LORD, Respondent, and Daniel E. Beeson, Defendant. 8 |
| Court | Oregon Court of Appeals |
J. Patrick O'Malley and Delo & O'Malley, Portland, for petition.
Craig D. White, Portland, filed an objection for appellant.
Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.
After our opinion dismissing this appeal, 102 Or.App. 607, 795 P.2d 607 (1990), respondent Lord petitioned for attorney fees under ORS 20.105. He contends that the appeal was without merit and was pursued in bad faith. We deny the petition.
Our opinion recited some of the procedural history leading to our decision to dismiss the appeal. We concluded that Pettibon had waived his right to appeal, because he had commenced an action to collect a note given to satisfy partially the settlement that he was challenging. Respondent Lord argues that the law is clear that a party who elects to accept the benefits of a judgment cannot appeal it. He raised that issue in his responding brief and in a motion to dismiss the appeal. He contends that Pettibon's persistence in pursuing the appeal after attempting to collect the note given him as part of the judgment "is a clear example of the bad faith required to support an award of attorneys' fees under ORS 20.105."
Pettibon argued on the appeal that, because the settlement was coerced, his acceptance of part of the judgment by efforts to collect on the note was not voluntary. He also argued that collection of the note was not inconsistent with the issues that he raised on appeal and so he had not waived his right to appeal.
In Mattiza v. Foster, 311 Or. 1, 803 P.2d 723 (1990), the court said:
"An award of attorney fees under ORS 20.105(1) is appropriate when the court has made the following findings: (1) the party to whom attorney fees are to be awarded is a prevailing party; (2) the claim, defense, or ground for appeal or review is without merit; and (3) the party taking the meritless position has done so with an improper purpose." 311 Or. at 10, 803 P.2d 723.
There is no question but that Lord prevailed on appeal. The next inquiry is whether the appeal was meritless. On that issue, the court said in Mattiza:
"A meritless position is one that ...
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