Northwest Acceptance Corp. v. Bles Studs, Inc.

• Jurisdiction: Oregon
• Parties: NORTHWEST ACCEPTANCE CORPORATION, an Oregon corporation, Respondent-Cross Appellant, v. BLES STUDS, INC., an Oregon corporation; Short Pole Logging Co., Inc., an Oregon corporation; Gooseneck Land Company, Inc., an Oregon corporation; Charles E. Bernert; Diane Bernert; John R. Lehr; Pauline Lehr; George L. Marston, dba Marston Logging, Defendants, C. Alan Nyman and Jackie Nyman, Appellants-Cross Respondents. ; CA A32780. . On Respondent-Cross Appellant's Motion to Dismiss Appeal
• Citation: 702 P.2d 1128,74 Or.App. 248
• Docket Number: No. 40001,40001
• Court: Oregon Court of Appeals
• Decision Date: 03 October 1984

Page 1128

702 P.2d 1128

74 Or.App. 248

NORTHWEST ACCEPTANCE CORPORATION, an Oregon corporation Respondent-Cross Appellant, v. BLES STUDS, INC., an Oregon corporation; Short Pole Logging Co., Inc., an Oregon corporation; Gooseneck Land Company Inc., an Oregon corporation; Charles E. Bernert; Diane Bernert; John R. Lehr; Pauline Lehr; George L. Marston dba Marston Logging, Defendants C. Alan Nyman and Jackie Nyman, Appellants-Cross Respondents.

No. 40001; CA A32780.

Court of Appeals of Oregon.

On Respondent-Cross Appellant's Motion to Dismiss Appeal Oct. 3, 1984. On Appellants-Cross Respondents' Supplemental Notice of Appeal Oct. 4, 1984. Decided July 3, 1985.

R. Scott Palmer, and Harrang, Swanson, Long & Watkinson, Eugene, appeared for respondent-cross appellant on motion to dismiss.

David J. Sweeney, Mark B. Weintraub, and Gilbertson, Brownstein, Rask, Sweeney, Kerr & Grim, Portland, appeared for appellants-cross respondents.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

YOUNG, Judge.

Plaintiff moves to dismiss the appeal of defendants Nyman on the ground that they did not file an undertaking in the amount of $9,500, as required by a post-judgment order of the trial court. Defendants, by a supplemental notice of appeal, appeal from the order. We deny the motion to dismiss the appeal and reverse on the supplemental appeal.

Plaintiff recovered a judgment against defendants which, with interest and attorney fees, totals over $300,000. Defendants filed a notice of appeal and an undertaking in the minimum statutory amount of $500. Plaintiff objected to the undertaking on the ground that it would not indemnify plaintiff for its anticipated attorney fees in case of an affirmance on appeal. ¹ The trial court agreed and added $9,000 for anticipated attorney fees to the statutory minimum for other costs and disbursements. In doing so, it noted that "this is a cost bond solely to ensure that the defendant would pay any costs and disbursements which would be awarded to the plaintiff, including attorney's fees on appeal. The undertaking will not stay the proceedings or the enforcement of the judgment."

An appellant must file an undertaking within ten days after filing the notice of appeal. ORS 19.038(1). ORS 19.040(1) provides in part:

"The undertaking of the appellant shall be given in the minimum amount of $500 unless otherwise fixed by the court with one or more sureties, to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against the appellant on the appeal not exceeding the sum therein specified * * *."

The issue is whether contractual attorney fees are among the "damages, costs and disbursements" which may be awarded against a losing appellant. We hold that that phrase refers only to items recoverable in a statement of costs and disbursements, not to a separate award of reasonable attorney fees. ²

ORS 20.310 sets out the costs and disbursements which the prevailing party on appeal may recover:

"When costs are allowed to the prevailing party on appeal to the Supreme Court or Court of Appeals the appearance fees, attorney fees, as provided by law; the necessary expenses of transcript or abstract, as the law or rules require; the printing required by rule of the court, and the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal, shall be taxed in the Supreme Court or Court of Appeals as costs of the appeal."

The reference is to attorney fees "as provided by law." We do not construe that provision to refer to reasonable attorney fees provided for in a contract. Rather, it refers to the prevailing party fees established by ORS 20.190. ³

Before the adoption of ORS 20.190 in 1983, prevailing party fees were provided in former ORS 20.070 (repealed by Or.Laws 1981, ch. 898, § 53). They were the statutory "costs," in contrast to the "disbursements" allowed in former ORS 20.020 (repealed by Or.Laws 1981, ch. 898, § 53). ⁴ Their purpose was described in former ORS 20.010 (repealed by Or.Laws 1981, ch. 898, § 53):

"The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there may be allowed to the prevailing party in the judgment or decree certain sums by way of indemnity for his attorney fees in maintaining the action or suit, or defense thereto, which allowances are termed costs."

We have held that a prevailing party may not recover the attorney fees awarded as costs under former ORS 20.010 and former ORS 20.070 in addition to reasonable attorney fees provided by another statute, because both would be awards for attorney fees and only one such award is permissible. Skinner v. Keeley, 47 Or.App. 751, 758, 615 P.2d 382 (1980). Although the prevailing party fees provided in ORS 20.190 are not called "costs" or "attorney fees," they are the current version of the former costs which were explicitly designed to indemnify the prevailing party for a portion of the party's attorney fees. The amounts provided in ORS 20.190 are therefore the "attorney fees, as provided by law" which ORS 20.310 states may be included in costs on appeal. They are distinct from reasonable attorney fees, which may be awarded on a different basis.

The undertaking which ORS 19.040(1) requires for an appeal is to cover ...