Shipler v. Van Raden, 18-253
| Decision Date | 11 September 1979 |
| Docket Number | No. 18-253,18-253 |
| Citation | 42 Or.App. 535,601 P.2d 487 |
| Parties | Tom SHIPLER and Betty D. Shipler, Appellants, v. Kenneth H. VAN RADEN and Susan Lee Van Raden, Nita Wagner, and The Lewelling Corporation, an Oregon Corporation, Respondents. 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, Appellants. ; CA 11599,; CA 11599. . On Respondents' Petition for Reconsideration |
| Court | Oregon Court of Appeals |
Asa L. Lewelling, Salem, for petition.
Before SCHWAB, C. J., and LEE, GILLETTE and CAMPBELL, JJ.
Defendants' petition for reconsideration concerning denial of attorney fees is granted. That portion of the opinion, 41 Or.App. 425, 599 P.2d 1141, which states that " * * * defendants' amended answer contains neither pleadings nor a prayer for attorney fees and * * * " is withdrawn. 1 As modified, the opinion is adhered to.
Reaffirmed as modified.
1 Defendants Van Raden's answer did not seek attorney fees, but defendant Lewelling Corporation's answer did pray for "attorney's fees in the amount of $1,000.00". There was no mention of attorney fees during the trial. At the close of the trial, the court granted Lewelling Corporation's demurrer and subsequently ordered summary judgment in favor of defendants Van Raden. There was no stipulation that the prevailing party might subsequently offer evidence of a reasonable attorney fee. There was no motion to reopen the case.
On the date when the decree was entered, counsel for all defendants filed a "Motion for the Allowance of Attorney's Fees" in the sum of $2,016.00 relying on ORS 20.096 which provides for "attorney fees in addition to costs". The motion was supported by an affidavit detailing the time expended in defending on behalf of all defendants. Plaintiffs did not resist the motion. The court entered judgment against plaintiffs for $2,016.00.
After the notice of appeal had been filed, upon motion of plaintiffs, the court erroneously amended the decree by striking the $2,016.00. However, defendants' foregoing procedure failed to comply with the requirement of Pritchett v. Fry, 286 Or. 189, 593 P.2d 1133 (1979), which is applicable, because ORS 20.096 distinguishes attorney fees from costs so they may be recovered "only if they are pleaded and proved at trial." 286 Or. at 193, 593 P.2d at 1135.
In effect, defendants presented a cost bill seeking attorney fees...
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Shipler v. Van Raden
...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 th......
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Valenti v. Hopkins
...See also Donaca v. Ivall, 44 Or.App. 121, 605 P.2d 709 (1980); Shipler v. Van Raden, 41 Or.App. 425, 429, 599 P.2d 1141, mod. 42 Or.App. 535, 601 P.2d 487 (1979), mod. 288 Or. 735, 608 P.2d 1162 (1980). We conclude that when the issue on appeal concerns an interpretation of covenants, that ......