King v. NEVERSTILL ENTERPRISES, LLC
240 Or. App. 727
Or. Ct. App.2011Background
- Neverstill Enterprises contracted to purchase Fernando's Hideaway for $575,000; two promissory notes and a guaranty by Reierson included attorney-fee provisions.
- Plaintiff Laura King was a member, later sole member of Fernando's.
- Fernando's dissolved administratively in Aug. 2003 and its certificate was canceled in Aug. 2005; no timely assignment to King.
- Plaintiff sued in 2007 for breach of the contracts; trial court dismissed under ORCP 54 B(2) as not the real party in interest.
- Defendants sought attorney fees under ORS 20.083 and costs under ORCP 68 B; trial court denied.
- On appeal, the court vacates and remands, holding ORS 20.083 applies and costs should be governed by ORCP 68 B.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 20.083 applies when prevailing party wins on real-party-in-interest issue | King contends 20.083 does not apply because contract validity not challenged | Defendants rely on 20.083 to award fees when they prevail on contract-based claim | Yes; ORS 20.083 applies and fees awarded to prevailing party |
| Whether the court could award costs after involuntary dismissal under ORCP 54 B | Dismissal under 54 B precludes costs | Costs should follow prevailing party status under ORCP 68 B | No; the court erred and should award costs under ORCP 68 B on remand |
Key Cases Cited
- Golden West Insulation v. Stardust Investment Co., 47 Or.App. 493 (Or. App. 1980) (reciprocity principle under ORS 20.096 expanded by later decisions)
- Bodenhamer v. Patterson, 278 Or. 367 (Or. 1977) (fees denied for unenforceable contract defense; contract must exist to trigger fees)
- Care Medical Equipment, Inc. v. Baldwin, 331 Or. 413 (Or. 2000) (void noncompetition provision defeats fee entitlement under contract)
- Dess Properties v. Sheridan Truck & Heavy Equipment, 220 Or.App. 336 (Or. App. 2008) (whether ORS 20.083 applies when no contract exists; contract must be entered to trigger)
- Clapper v. Oregon State Police, 228 Or.App. 172 (Or. App. 2009) (prevailing party status governs costs under ORCP 68 B)