U-Cart Concrete of Eugene, Inc. v. Farmers Ins. Co. of Oregon

Decision Date18 November 1980
Docket NumberU-CART,No. TC,TC
Citation290 Or. 151,619 P.2d 882
PartiesCONCRETE OF EUGENE, INC. et al., Plaintiffs-Appellants-Petitioners, v. FARMERS INSURANCE COMPANY OF OREGON et al., Defendants-Respondents. 78-2736; CA 14710; SC 26963.
CourtOregon Supreme Court

George A. Burgott, and Thwing, Atherly & Butler, Eugene, for the bill.

Robert A. Ford, and Bromley & Ford, Eugene, on objections to the bill.


This matter is before the court upon plaintiffs' objections to defendants' bill of costs and disbursements. The issue presented is whether, upon denial by this court of a petition for review, the respondent shall recover costs and disbursements as a prevailing party. We hold that there shall be no recovery.

In the trial court the defendants had summary judgment in this declaratory judgment proceeding, and the Court of Appeals affirmed. U-Cart Concrete v. Farmers Ins., 45 Or.App. 149, 607 P.2d 791 (1980). Plaintiffs petitioned this court for review. Defendants, without any request by this court, filed a response to the petition, Rule 10.05, Rules of Appellate Procedure. This court denied the petition. U-Cart Concrete of Eugene, Inc. v. Farmers Insurance Co., 289 Or. 107 (1980). Defendants then filed their bill of costs and disbursements, seeking $75 as "prevailing party fee" and $32.50 for the expense of printing their response. Plaintiffs objected to both items. This court requested and received memoranda of law in support of the parties' respective positions.

Early on, this court held the right to recover costs was unknown to the common law and was of purely statutory origin. 1 Wood v. Fitzgerald, 3 Or. 568, 583 (1870). To the same effect is Gowin v. Heider, 237 Or. 266, 325, 391 P.2d 630 (1964).

"Costs" are by way of indemnity for a party's attorney fees in maintaining or defending an action or suit, ORS 20.010. That statute provides that costs may be allowed to "the prevailing party in the judgment or decree." In certain instances, a plaintiff or defendant may be allowed costs as a matter of course. See, e. g., ORS 20.040 and 20.060.

Arguably, two sections of the code other than ORS 20.010 may be applicable to an award of costs in this court. ORS 20.070(1) provides:

"Costs, when allowed either party, are as follows:

"(1) In the Supreme Court, or Court of Appeals, on an appeal, to the prevailing party, $75."

ORS 20.100, in pertinent part, is as follows:

" * * * In any action, suit or proceeding as to which the allowance and recovery of costs may not be provided for by statute, costs may be allowed or not, * * * in the discretion of the court."

Assuming that ORS 20.100 is applicable, we exercise the discretionary power not to allow costs in this instance.

Construing ORS 20.010 and 20.070(1) together, we see that costs may be allowed to the prevailing party "in the judgment or decree." In Gowin v. Heider, supra, this court found that it was settled that on an appeal "costs and disbursements are allowed as a matter of course to the prevailing party on the affirmance or reversal of a judgment." 237 Or. at 326, 391 P.2d at 639. The court went on to hold that costs would be allowed to the appellant who obtained a "substantial modification" when this court reversed plaintiff's judgment on one cause of action although affirming the judgment on two other causes. The reason for that result was that the appellant was held to be the prevailing party.

In a case in which this court affirms or reverses a judgment, there is a prevailing party and a judgment to support the award of costs. In denying a petition for review, we neither affirm nor reverse a judgment. We do not even implicitly decide that the respondent's position is correct or that the Court of Appeals properly decided the case. See, 1000 Friends of Oregon v. Bd. of Co. Com., 284 Or. 41, 584 P.2d 1371 (1978).

When a petition for review is denied, the respondent has not prevailed "on an appeal" in this court. Rather, the court has chosen not to entertain an "appeal." 2 There is no basis for awarding costs "on an appeal."

With respect to the matter before us, therefore, we find there is no judgment of this court to support an award of costs and there is no appeal before the court. We hold that there is no basis for an award of costs under the statutes.

The claim for printing respondents' response is a claim for disbursements. A party is not entitled to recover for disbursements unless that party is entitled to costs. ORS 20.020; Wood v. Fitzgerald, supra. The claim must be disallowed.

The objections to the bill of costs and disbursements are sustained and the bill is denied.

1 At one time a line of decisions of this court indicated that costs are recoverable under Or.Const. Art. VII (Amend.), § 3, but in ...

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8 cases
  • Arvidson v. Liberty Nw. Ins. Corp. (In re Arvidson)
    • United States
    • Oregon Supreme Court
    • July 16, 2020
    ...on our earlier decisions in 1000 Friends of Oregon v. Bd. of Co. Comm. , 284 Or. 41, 584 P.2d 1371 (1978) and U-Cart Concrete v. Farmers Ins. , 290 Or. 151, 619 P.2d 882 (1980), both of which dealt with the unique nature of petitions for discretionary review in this court, we concluded that......
  • Shearer’s Foods v. Hoffnagle (In re Hoffnagle)
    • United States
    • Oregon Supreme Court
    • June 21, 2018
    ...has held, in the context of other statutes, that no party "prevails" when this court denies review, citing U–Cart Concrete v. Farmers Ins. , 290 Or. 151, 153–54, 619 P.2d 882 (1980), and Curry, 297 Or. at 509, 686 P.2d 363, which quotes U–Cart . Employer reads too much into those cases. The......
  • DeYoung v. Board of Parole
    • United States
    • Oregon Supreme Court
    • July 6, 2001
    ...that relate to a release date unreviewable. 4. Petitioners also suggest that their position is supported by U-Cart Concrete v. Farmers Ins., 290 Or. 151, 619 P.2d 882 (1980), which they interpret as holding that, when a court neither affirms nor reverses a judgment, no party has prevailed f......
  • In re Marriage of Polacek
    • United States
    • Oregon Supreme Court
    • December 2, 2010
    ...is in some sense also "on an appeal." This court's case law supplies a helpful resolution of that conundrum. In U-Cart Concrete v. Farmers Ins., 290 Or. 151, 619 P.2d 882 (1980), the plaintiff lost at trial and before the Court of Appeals, and filed a petition for review in this court. The ......
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