Shipler v. Van Raden
| Decision Date | 25 March 1980 |
| Citation | 608 P.2d 1162,288 Or. 735 |
| Parties | Tom SHIPLER and Betty D. Shipler, Respondents, v. Kenneth H. VAN RADEN and Susan Lee Van Raden, Nita Wagner, and The Lewelling Corporation, an Oregon corporation, Petitioners. TC 18-253; CA 11599; SC 26471. |
| Court | Oregon Supreme Court |
Asa L. Lewelling, Salem, argued the cause and filed the brief for petitioners.
H. William Barlow, Salem, argued the cause and filed the briefs for respondents.
Before DENECKE, C. J., and TONGUE, HOWELL, LENT, LINDE * and PETERSON, JJ.
The issue is whether, in a suit in equity, a party seeking attorney fees under ORS 20.096(1) must adduce his evidence on attorney fees before the trial court has rendered the decision which will determine who is the prevailing party. We hold that is not necessary. 1
That section of the code provides:
"In any action or suit on a contract, where such contract specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, at trial or on appeal, shall be entitled to reasonable attorney fees in addition to costs and necessary disbursements." 2
The contractual provision is:
"In the event that suit or action shall be brought to enforce any condition, covenant or restrictions herein contained, the person or persons bringing such suit or action shall be entitled to recover from the defendants therein such amount as the Court shall adjudge reasonable for attorneys' fees in such suit or action, * * * ."
Plaintiffs sought to enforce covenants of the contract by a request for injunction to prevent their neighbors, defendants Van Raden, and Van Radens' builder, Wagner, from completing construction of a house and sought damages. Joined as defendant was the Lewelling Corporation (Lewelling), a party to the contract and the common grantor of the two parcels of real property. All defendants denied plaintiffs were entitled to any relief. Additionally, Van Radens counterclaimed for damages on a cause of action for malicious prosecution and for attorney fees. They alleged they suffered damages of $500 attorney fees by reason of the alleged malicious prosecution but did not plead the contractual provision concerning attorney fees. Lewelling by affirmative answer sought attorney fees of $1,000, pleading the contractual provision as the basis therefor. Wagner's answer had no prayer.
Following the presentation of evidence the trial court took the case under advisement. Later the court advised counsel by letter of the decision on the merits, denying the requested injunction and damages and held against Van Radens on their counterclaim for damages. The trial court requested that counsel for defendants prepare a form of decree. Counsel for defendants filed a "Motion for Allowance of Attorney's Fees" supported by affidavit of the lawyer who acted as counsel for all defendants. By this affidavit he set forth a detailed statement of time spent for all defendants (excluding time spent on Van Radens' counterclaim). The trial court held the motion for several days and then, without hearing thereon, signed the decree prepared by defendant's counsel, inter alia, denying costs and disbursements to all parties but allowing to all defendants judgment for attorney's fees of $2,016, the amount asked for in the motion and affidavit.
Plaintiffs filed a motion to amend the decree to eliminate the award of attorney fees, but before the motion was heard, plaintiffs appealed to the Court of Appeals, assigning as error the trial court's decision on the merits of plaintiff's claims, ORS 19.125(3), and the allowance of any attorney fees to the defendants. The trial court entered an order to amend the decree by striking the allowance of attorney fees. Defendants cross-appealed from that order.
The Court of Appeals affirmed the trial court on its decision on the merits of plaintiffs' claim. The Court of Appeals agreed with defendants' contention that the trial court had no jurisdiction to delete the award of fees but held that defendants were not entitled to attorney fees because they had neither pleaded nor prayed for attorney fees and had adduced no evidence thereon at trial. Shipler v. Van Raden, 41 Or.App. 425, 599 P.2d 1141 (1979).
The Court of Appeals granted defendants' petition for reconsideration and withdrew the portion of its original opinion that found that there was no pleading or prayer for attorney fees. Shipler v. Van Raden, 42 Or.App. 535, 601 P.2d 487 (1979). That court adhered to its decision that defendants were not entitled to attorney fees because: (1) No evidence on that issue was introduced during trial. (2) There was no stipulation that the matter could be considered after determination by the trial court on the merits, whereby the prevailing party would be identified. (3) There was no motion to reopen the case. (4) "In effect, defendants presented a cost bill seeking attorney fees contemporaneously with the judgment order." 42 Or.App. at 537, n. 1, 601 P.2d at 487. The Court of Appeals found this procedure to be impermissible under this court's decision in Pritchett v. Fry, 286 Or. 189, 593 P.2d 1133 (1979).
We allowed review, ORS 2.520, 288 Or. 113, to consider the issue posed at the outset of this opinion.
Neither Pritchett v. Fry, supra, nor Pacific N. W. Dev. Corp. v. Holloway, 274 Or. 367, 546 P.2d 1063 (1976), upon which we relied in Pritchett, is directly controlling in this suit. Both of those cases were concerned with forcible entry and detainer actions and the fixing and awarding of attorney fees under ORS 91.755:
On the other hand Pritchett points to the treatment in our decisions of the difference between those statutes which provide for attorney fees to be awarded in the manner of costs and disbursements and those statutes which do not provide for that mode. Insofar as the language of ORS 20.096(1) and ORS 91.755 is concerned there appears to be no reason to say that, as such, ORS 20.096(1) requires anything different than ORS 91.755. 3
Before examining the holding in Pritchett, we turn to some language in Pritchett that may be overboard. We there said that where attorney fees are properly recoverable, but not as a part of "costs," they (286 Or. at 191, 593 P.2d at 1134) ."
The quoted matter is supported by language in State High. Com. et al. v. Kendrick et al., 227 Or. 608, 363 P.2d 1078 (1961), but that language was not apposite to the case before the court.
The Kendrick case was a condemnation proceeding in which attorney fees were recoverable under a statute (227 Or. at 609, n. 1, 363 P.2d at 1079):
"The costs and disbursements of the defendants, including a reasonable attorney's fee to be fixed by the court, shall be taxed by the clerk * * * ."
A jury had awarded defendants damages in an amount which entitled the defendants to attorney fees under that statute. The awarding of attorney fees under that statute was not committed to the jury, which was the trier of facts on the merits of the value of the property taken. The award was not made by the jury based on evidence adduced at trial. Rather, the award was made by the trial judge upon a hearing after verdict.
The other case, Draper v. Mullennex et al., 225 Or. 267, 357 P.2d 519 (1960), relied upon in Pritchett for the matter above quoted above does not contain any statement that the issue of attorney fees is to be submitted "as part of the trial." In that case a plaintiff sought to recover attorney fees in an action at law but pleaded no statute or contract as authorization for an award. The issue was whether the allegations and prayer concerning attorney fees were surplusage and could therefore be disregarded in determining whether the cause was within the monetary jurisdiction of the district court. The decision does contain language that if a party seeks to recover attorney fees other than the "costs" provided by ORS 20.070, "then the right to such recovery should be particularly pleaded and proved." 225 Or. at 271, 357 P.2d at 521.
It is seen that neither State High. Com. et al. v. Kendrick et al., supra, nor Draper v. Mullennex, supra, involved a situation in which the issue was whether attorney fees had to be proven in the case in chief of the party seeking the fees. Language in those cases which so stated or implied was not necessary to decision. Our attention in Pritchett to that language in those cases was really not necessary to our decision in Pritchett.
We now examine the actual holding in Pritchett. That was a landlord's wrongful detainer action to gain possession of the rented premises. ORS 105.105 to 105.160. Defendant tenant's answer denied the detainer was wrongful and, without any affirmative allegation of a right to recover attorney fees, prayed for judgment in her favor and "that defendant be awarded reasonable attorneys' fees and her costs and disbursements incurred herein." Oregon Briefs, vol. 2421, 2/165, Ab. A-2. The trial judge, on plaintiff's motion, struck the prayer for attorney fees. The decision of the trial judge on the merits established defendant as the prevailing party for the purposes of ORS 91.755 and the judge signed a judgment to that effect, which included a "____" for "costs and...
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