71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 593
A-Engrossed
House Bill 2374
Ordered by the House April 12
Including House Amendments dated April 12
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Procedure and Practice section of Oregon State
Bar)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Provides that more than one party may be prevailing party in
civil action { + , including arbitration, trial and appeal, + }
for purpose of making award of attorney fees. Requires that court
{ + or arbitrator + } determine prevailing party on each claim
made in proceeding.
{ - Authorizes award of attorney fees for arbitration if
attorney fees would be available upon trial of matter. - } { +
Clarifies that Act does not create new claim to award of attorney
fees. + }
Specifies factors court must consider in { - awarding - }
{ + determining amount of + } attorney fees when statute
requires award.
A BILL FOR AN ACT
Relating to attorney fees; creating new provisions; amending ORS
20.075 and 20.096 and ORCP 70 A; and repealing ORS 20.015.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) In any action or suit in which one or more
claims are asserted for which an award of attorney fees is either
authorized or required, the prevailing party on each claim shall
be determined as provided in this section. The provisions of this
section apply to all proceedings in the action or suit, including
arbitration, trial and appeal.
(2) For the purposes of making an award of attorney fees on a
claim, the prevailing party is the party who receives a favorable
final judgment, decree or arbitration award on the claim. If more
than one claim is made in an action or suit for which an award of
attorney fees is either authorized or required, the court or
arbitrator shall:
(a) Identify each party that prevails on a claim for which
attorney fees could be awarded;
(b) Decide whether to award attorney fees on claims for which
the court or arbitrator is authorized to award attorney fees, and
the amount of the award;
(c) Decide the amount of the award of attorney fees on claims
for which the court or arbitrator is required to award attorney
fees; and
(d) Enter a judgment that complies with the requirements of
ORCP 70 A.
(3) Notwithstanding subsection (2) of this section, upon appeal
of a judgment or decree in an action or suit in which one or more
claims are asserted for which the prevailing party may receive an
award of attorney fees, the appellate court in its discretion may
designate as the prevailing party a party who obtains a
substantial modification of the judgment or decree.
(4) This section does not create a claim to an award of
attorney fees in any action or suit in which the court or
arbitrator is not otherwise authorized or required to make an
award of attorney fees by contract or other law. + }
SECTION 2. ORCP 70 A is amended to read:
A Form. Every judgment shall be in writing plainly titled as a
judgment and set forth in a separate document. A default or
stipulated judgment may have appended or subjoined thereto such
affidavits, certificates, motions, stipulations, and exhibits as
may be necessary or proper in support of the entry thereof.
A(1) Content. No particular form of words is required, but
every judgment shall:
A(1)(a) Specify clearly the party or parties in whose favor it
is given and against whom it is given and the relief granted or
other determination of the action.
A(1)(b) Be signed by the court or judge rendering such judgment
or, in the case of judgment entered pursuant to Rule 69 B(1), by
the clerk.
A(2)(a) Money judgment; contents. Money judgments are judgments
that require the payment of money, including judgments for the
payment of costs or attorney fees. The requirements of this
subsection are not jurisdictional for purposes of appellate
review. Money judgments shall include all of the following:
A(2)(a)(i) The name and address of each judgment creditor and
the name, address and phone number of each creditor's attorney,
if any.
A(2)(a)(ii) The name of each judgment debtor and, if known, the
address, date of birth, Social Security number and driver license
number for each judgment debtor, the state of issuance for each
judgment debtor's driver license and the name of each judgment
debtor's attorney.
A(2)(a)(iii) The name of any person or public body known to the
judgment creditor, other than the judgment creditor's attorney,
who is entitled to any portion of a payment made on the judgment.
A(2)(a)(iv) The amount of the judgment.
A(2)(a)(v) The interest owed to the date of the judgment,
either as a specific amount or as accrual information, including
the rate or rates of interest, the balance or balances upon which
interest accrues, the date or dates from which interest at each
rate on each balance runs, and whether interest is simple or
compounded and, if compounded, at what intervals.
A(2)(a)(vi) Post-judgment interest accrual information,
including the rate or rates of interest, the balance or balances
upon which interest accrues, the date or dates from which
interest at each rate on each balance runs, and whether interest
is simple or compounded and, if compounded, at what intervals.
A(2)(a)(vii) For judgments that accrue on a periodic basis, any
accrued arrearages, required further payments per period and
accrual dates.
A(2)(a)(viii) If the judgment awards costs and disbursements or
attorney fees, that they are awarded { - and - } { + , + } any
specific amounts awarded { + , a clear identification of the
specific claims for which any attorney fees are awarded and the
amount of attorney fees awarded for each claim + }. This
subparagraph does not require inclusion of specific amounts where
such will be determined later under Rule 68 C.
A(2)(b) Form. To comply with the requirements of paragraph
A(2)(a) of this rule, the requirements in that paragraph must be
presented in a manner that complies with all of the following:
A(2)(b)(i) The requirements must be presented in a separate,
discrete section immediately above the judge's signature if the
judgment contains more provisions than just the requirements of
paragraph A(2)(a) of this rule.
A(2)(b)(ii) The separate section must be clearly labeled at its
beginning as a money judgment. On or after January 1, 1994, if
the money judgment includes a child support obligation, the label
must so indicate.
A(2)(b)(iii) The separate section must contain no other
provisions except what is specifically required by this rule for
judgments and, if applicable, by ORS 24.290 for the payment of
money.
A(2)(b)(iv) The requirements under paragraph A(2)(a) of this
rule must be presented in the same order as set forth in that
paragraph.
A(3) If the proposed judgment does not comply with the
requirements in subsections A(1) and (2) of this rule, it shall
not be signed by the judge. If the judge signs the judgment, it
shall be entered in the register whether or not it complies with
the requirements in subsections A(1) and (2) of this rule.
SECTION 3. ORS 20.075 is amended to read:
20.075. (1) A court shall consider the following factors in
determining whether to award attorney fees in any case in which
{ + an award of + } attorney fees { - are - } { + is + }
authorized by statute and in which the court has discretion to
decide whether to award attorney fees:
(a) The conduct of the parties in the transactions or
occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in bad
faith or illegal.
(b) The objective reasonableness of the claims and defenses
asserted by the parties.
(c) The extent to which an award of an attorney fee in the case
would deter others from asserting good faith claims or defenses
in similar cases.
(d) The extent to which an award of an attorney fee in the case
would deter others from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the
diligence of the parties and their attorneys during the
proceedings.
(f) The objective reasonableness of the parties and the
diligence of the parties in pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party
fee under ORS 20.190.
(h) Such other factors as the court may consider appropriate
under the circumstances of the case.
(2) A court shall consider the factors specified in subsection
(1) of this section in determining the amount of an award of
attorney fees in any case in which { + an award of + } attorney
fees { - are - } { + is + } authorized { + or required + }
by statute { - and in which the court has discretion to decide
whether to award attorney fees - } . In addition, the court shall
consider the following factors in determining the amount of an
award of attorney fees in those cases:
(a) The time and labor required in the proceeding, the novelty
and difficulty of the questions involved in the proceeding and
the skill needed to properly perform the legal services.
(b) The likelihood, if apparent to the client, that the
acceptance of the particular employment by the attorney would
preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar
legal services.
(d) The amount involved in the controversy and the results
obtained.
(e) The time limitations imposed by the client or the
circumstances of the case.
(f) The nature and length of the attorney's professional
relationship with the client.
(g) The experience, reputation and ability of the attorney
performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
(3) In any appeal from the award or denial of an attorney fee
subject to this section, the court reviewing the award may not
modify the decision of the court in making or denying an award,
or the decision of the court as to the amount of the award,
except upon a finding of an abuse of discretion.
(4) Nothing in this section authorizes the award of an attorney
fee in excess of a reasonable attorney fee.
SECTION 4. ORS 20.096 is amended to read:
20.096. (1) In any action or suit { + in which a claim is made
based + } 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 { + that prevails on the claim + },
whether that party 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 disbursements.
(2) Attorney fees provided for in a contract described in
subsection (1) of this section shall not be subject to waiver by
the parties to any such contract { - which - } { + that + }
is entered into after September 9, 1971. Any provision in such a
contract { - which - } { + that + } provides for a waiver of
attorney fees is void.
(3) If the plaintiff prevails in any action or suit { + on a
claim based + } on a contract { - which - } { + that + }
expressly provides for the award of attorney fees { + , + }
{ - where - } { + and + } the amount of principal together
with interest due on { - such - } { + the + } contract at the
time of commencement of the proceedings does not exceed $200,
there shall be taxed and allowed to the plaintiff a reasonable
amount to be fixed by the court as attorney fees, if the court
finds that written demand for the payment of plaintiff's claim
was made on the defendant not less than 10 days before the
commencement of the action. However, no attorney fees shall be
allowed to the plaintiff if the court finds that the defendant
tendered to the plaintiff, subsequent to such demand but prior to
the commencement of the action or suit, an amount not less than
the damages awarded to the plaintiff.
(4) In the event that a default judgment is taken against the
defendant { - in an action or suit - } { + on a claim + }
described in subsection (3) of this section, the amount of
attorney fees awarded shall be 25 percent of the amount of the
principal together with interest due, exclusive of any other fees
or costs authorized by law.
{ - (5) Except as provided in ORS 20.015, as used in this
section and ORS 20.097 'prevailing party' means the party in
whose favor final judgment or decree is rendered. - }
{ - (6) - } { + (5) + } As used in this section and ORS
20.097 { + , + } ' contract' includes any instrument or document
evidencing a debt.
SECTION 5. { + ORS 20.015 is repealed. + }
----------