U.S. Nat. Bank of Oregon v. Smith, 78-3448
| Citation | 292 Or. 123,637 P.2d 139 |
| Decision Date | 09 December 1981 |
| Docket Number | No. 78-3448,78-3448 |
| Parties | UNITED STATES NATIONAL BANK OF OREGON, a National Banking Association, Petitioner on Review, v. W. R. SMITH, Respondent on Review, and Patricia Lynn Smith, Standard Oil Company of California, Man-Data, Inc., dba Pacific Coast Credit, Defendants. ; CA 16508; SC 27523. |
| Court | Supreme Court of Oregon |
Richard Bryson, Eugene, argued the cause for petitioner on review. With him on briefs was Bryson & Bryson, Eugene.
Harold D. Gillis, Eugene, argued the cause and filed briefs for respondent on review.
Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.
This is a suit to foreclose a mortgage secured by a note which provides that:
" * * * in case suit or action is instituted to collect this note * * * I promise to pay such additional sum as the court may adjudge reasonable as attorneys' fees in said suit or action, or on any appeal therefrom * * *."
The trial court entered a decree of foreclosure in favor of plaintiff and also awarded $3,156 to plaintiff as attorney fees. Defendant appealed to the Court of Appeals, assigning two errors, including one contending that the trial court erred in its award of attorney fees in that amount. The Court of Appeals affirmed the decree of the trial court, except for its award of attorney fees on the trial of this case, which it reduced to the sum of $750. 49 Or.App. 289, 619 P.2d 921 (1980). 1
Defendant then filed both a cost bill and a petition for an award of $1,940 as attorney fees to him as the "prevailing party" on the appeal. Plaintiff also filed a cost bill and a petition for attorney fees on appeal.
The Court of Appeals awarded defendant $1,940 as attorney fees, as well as defendant's cost bill in the sum of $702, on the ground that defendant was the prevailing party on the appeal. Plaintiff then filed a petition for review of that award to defendant of attorney fees and costs on appeal, contending that defendant was not the prevailing party on the appeal, and that under the provisions of both the note and ORS 20.096 plaintiff, instead of defendant, was entitled to attorney fees and costs on the appeal of this case. We allowed that petition because of apparent confusion in the law on this question in cases involving contracts with provisions for payment of attorney fees.
ORS 20.096 provides:
Defendant's petition to the Court of Appeals for an award of attorney fees on appeal states that he "relies on ORS 20.096." The memorandum submitted by defendant to the Court of Appeals in support of its "Cost Bill" relies upon decisions by this court holding that when, as in this case, a defendant obtains on appeal a reduction in the amount of judgment or decree against him (in this case a reduction of the attorney fees awarded to plaintiff by the trial court), he is the "prevailing party" on appeal and, as such, is entitled to an award by the appellate court of the costs incurred by him on the appeal, citing Clements v. Thornton, 268 Or. 367, 377, 520 P.2d 893 (1974); Keegan v. Lenzie, 171 Or. 194, 135 P.2d 717 (1943), and Obermeier v. Mortgage Co. Holland-America, 123 Or. 469, 259 P. 1064, 260 P. 1099, 262 P. 261 (1927). To the same effect, see Gowin v. Heider, 237 Or. 266, 327-28, 386 P.2d 1 (1963), modified on rehearing, 391 P.2d 630 (1964). It would appear that this was the basis for the holding by the Court of Appeals that defendant, rather than plaintiff, was entitled to an award of attorney fees as well as costs on the appeal of this case.
None of these cases involved provisions of a note or contract relating to payment of attorney fees or the provisions of ORS 20.096. Indeed, none of them involved awards of attorney fees. All of them involved appeals in actions at law, rather than suits in equity, and involved awards of costs and disbursements, rather than attorney fees. These cases held only that where, in such cases, there had been a substantial modification on appeal of the judgment of the trial court, the appellant was entitled to an award of costs and disbursements.
In this case, plaintiff's claim to attorney fees is based upon the provisions of a promissory note signed by defendant, which provides that in the event of suit or action he will pay "such additional sum as the court may adjudge reasonable as attorneys' fees in said suit or action or on any appeal therefrom * * *." 2 Thus, plaintiff contends that its right to attorney fees is contractual, not based on statute, and that under the provisions of the note defendant is obligated to pay whatever the court may adjudge reasonable as attorney fees on appeal (citing Sellgren v. Boyer, 207 Or. 521, 524, 297 P.2d 864 (1956)); that this "does not call for a determination of who prevailed," and that, as a result, plaintiff, rather than defendant, is entitled to attorney fees on appeal in this case. In addition, plaintiff contends that it is entitled to attorney fees under ORS 20.096 because it was the "prevailing party" under the provisions of that statute.
It follows, in our opinion, as contended by plaintiff, that in an action or suit to enforce the provisions of a contract which includes a provision for payment of attorney fees incurred to enforce provisions of the contract, the only question to be determined in deciding which party is entitled to an award of attorney fees on appeal is the question of determining "the party in whose favor final judgment or decree is rendered," not whether the appellant has been successful on appeal in obtaining some substantial modification of the judgment or decree as entered by the trial court.
Because the final decree in this case, although modified on appeal, affirmed the judgment in favor of plaintiff in the sum of $5,455, plus interest, as the balance due under the note, the plaintiff was the "prevailing party" for the purposes of ORS 20.096(1) and (5) and was, therefore, entitled to an award of reasonable attorney fees on appeal to the Court of Appeals. 4
Rather than remand this case to the Court of Appeals to determine what would be a reasonable attorney fee award to plaintiff on defendant's appeal to that court, and in the interests of expediting a final determination of this case, we shall make that determination. Plaintiff's petition for attorney fees asked for an award of $3,480 as a reasonable attorney fee on appeal to the Court of Appeals, based upon an affidavit listing in detail the work performed by plaintiff's attorneys in that appeal, totaling 431/2 hours at $80 per hour.
In Chalmers v. Oregon Auto. Ins. Co., 263 Or. 449, 455, 502 P.2d 1378 (1972), we said that:
"For the purpose of determining what is a reasonable attorney fee in the appeal of a case to this court, however, we must attempt to ascertain the reasonable value of such services, based not only upon the amount of time required, but also such additional factors as the novelty and difficulty of the question involved, the amount involved and the result obtained, among other factors."
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