*1 Attorney appellant-cross-respondent’s Petition for Fees filed Submitted 6, 1997; petition allowed resubmitted en banc June November 30, 1998 September NEWELL, Frank L. Respondent-Cross-Appellant,
v. WESTON, James M. Appellant-Cross-Respondent, COMPANY, NORTH PACIFIC INSURANCE Defendant. WESTON,
James M. Third-Party Plaintiff, EQUIPMENT COMPANY, NORTHWEST PUMP & Third-Party Defendant. A89561)
(9212-08470; CA *2 Darnell, O’Leary, Timothy Daniel E. Darleen R. Volpert Tremaine for Wright and Davis petition. Duden,
Paul R. Michael J. and Tooze Shenker Gentry Frank Hutchison, Duden Creamer & contra.
ARMSTRONG, J.
Edmonds, J., dissenting.
ARMSTRONG, J.
Defendant Weston
for an award of
petitions
He
on his lease
with
contends
agreement
plaintiff.
fees based
to fees
he
that he is entitled
because
plaintiff’s
in which plaintiff unsuccessfully attempted
cross-appeal,
decision that
could not
overturn the trial court’s
from defendant
for a breach of the lease.
damages
that defendant
is not entitled to an award
Plaintiff contends
and,
on the
as a
fees,
plaintiff prevailed
appeal,
because
be entered
result,
ultimately will
in his favor. We
$14,731.28.
the amount of
petition
allow defendant’s
The facts of the case are set forth in detail
in our
merits,
Newell v.
Weston,
decision on
P2d
rev den
“In the that by event suit or action is instituted Lessor compliance any terms, or Lessee to enforce with of the cov- enants and conditions of this agreement part on the of the other and kept performed, prevailing party to be shall recover in addition to the costs and provided disbursements may adjudge statute such sums as the court reasonable as fees and in the event appeal, such further may sum be fixed court on in appellate appeal such suit or action.” ultimately
The lease and leased the expired, plaintiff prem- Meanwhile, ises to another contamination at party. gasoline the site uncovered. Plaintiff sued defendant to recover the costs of remediation of the contamination. Plaintiff that he was entitled to recover those costs because alleged defendant’s use of the caused the contamination premises and that use constituted a breach of the lease various par- under ORS alleged ticulars. Plaintiff also to recover right for liability for strict 465.255(1), generally provides which from owner or any premises remedial action costs operator at occurred. which contamination
The trial court concluded that defendant had not breached the lease but that defendant was liable under ORS 465.255(1). Defendant that appealed, arguing trial court had erred that the statute concluding to him. applied Plaintiff that cross-appealed, trial court had arguing erred in that defendant had not concluding breached the lease. Plaintiff that he argued was entitled to relief on the of the cross-appeal, regardless outcome of the appeal, because the lease for provided over and above damages those 465.255(1) provided under ORS and provided for attorney fees.
We affirmed on the and on the appeal cross-appeal; is, we held that the trial court had correctly concluded under the statute plaintiff prevailed and that defendant on the claims for breach of the lease. We designated as the plaintiff on the prevailing party defendant appeal as the on the Defendant cross-appeal. now requests $14,731.28 an award of fees under par 23 of the agraph lease, on the that he ground both at trial and on the cross-appeal plaintiffs claims for breach of the lease. Plaintiff contends that defendant is not entitled to attorney fees under lease, 23 of the paragraph because defendant is not prevailing party. on our Relying Farms, in Meduri Inc. v. opinion Robert Jahn Corp., 40, 852 P2d plaintiff argues that, because the contract does not define prevailing party, definition of contained in “prevailing party’ controls. That statute that, provides exceptions applicable case, this “prevailing means “the party” party whose favor final or decree is rendered.” ORS Plain therefore, tiff argues, that defendant cannot fees for on the claims, lease because is the whose favor final will be entered in the action, so defendant is not the
of an award fees under the lease.
In Meduri
we
Farms,
estab
applied
principle
in Zidell
lished
v.
Devel.
Greenway
Co., 89 Or
Landing
App
ORS 20.096 for an award of provides attorney fees which the statute defines as “the prevailing party, party favor final whose decree is rendered.” ORS terms, its By that definition does not specify whether is the one in whose favor final is rendered in the action or the one in whose favor rendered claims to ORS 20.096 in the The Zidell court settled action. on the former interpretation, based on the that there can proposition be one action, in an so the reference to a the statute must be to the party prevails who in the action. Zidell, 89 Or at 528. But that App begs question. term does refer to the “prevailing party” usually action, in an see Investment Marquam Corp. Myers, 23, 30, (1978), but that does not mean that the legislature intended the term to have meaning context, ORS 20.096. In the legislature could have intended either of the above, identified meanings which makes statute ambiguous. it is Consequently, appropri- ate to look to legislative history determine which meaning intended.
House Bill 1342, the 1971 bill that became ORS 20.096, drafted was Aid Committee of the Legal State Bar to eliminate Oregon attorney-fee one-sided provi- sions in contracts. The about whom that committee people was concerned were principally consumers who enter into contracts that sellers of and services the unilateral give goods to recover right Minutes, fees. See House Judiciary Committee, Subcommittee HB Feb. 25,1971, 2-3. pp Those contracts sellers an unfair give advantage because them the to recover fees in they give right litigation consumers without to the outcome of the liti- against regard The committee drafted HB 1342 to address that gation. prob- sole lem. Its was to make purpose reciprocal right fees under contracts that contain attorney- fee Nothing provisions. suggests legislation intended to any other accomplish purpose.
376 particular, nothing suggests
In that the statute was impose recovery attorney intended to a new hurdle to the involving attorney-fee fees in cases contracts that contain provisions. adoption party Before of the statute, a who prevailed involving right on a claim a contractual to presumably regard would recover those fees without to party whether because the had in the action. That is right interpre to recover fees would turn on the attorney-fee provision tation of the in the contract, and it imagine provision being would be difficult to such a drafted to require party prevail a on all claims in action, an opposed provision, to the claims covered in order to light, legislative history fees.1 In that supports the conclusion that the who is enti tled to recover fees under ORS 20.096 is the prevails on the claims that are statute, that regard party prevails without to whether the in the action. 309 Or Minson,
Bennett v. provides support interpretation, also for that even attorney-fee involved the aof different stat- ute. Bennett involved a collision between two trucks. The against owners of the trucks asserted claims each other in a single plaintiff seeking damages action, with the of more seeking damages than $14,000 and the defendant of $4,000. jury, per- The case tried to which found each 50 cent at fault for the accident and awarded $14,203.63 in dam- ages plaintiff damages $4,000 to the defendant. jury sought Based verdict, on the the defendant an award of fees under ORS That statute provides: [in injury wrong “Ifthe defendant an action for an or
person property] pleads counterclaim, not to exceed $4,000, and the there shall action, in the defendant be taxed and defendant, allowed to the at trial and on appeal, attorney a reasonable amount to be fixed the court as prosecution feesfor ofthe counterclaim.” 183, 198-200, Supply, D American v. & L 283 Or P2d 521 Cf. Petrofina (1978) (court parties attorney-fee containing provision assumed that to contract provision apply quasi-contractual would intend to both contractual and claims transaction). that arose from same request the fee supplied.) court denied (Emphasis The trial ground had not the defendant net award had recovered action, because reasoning accepted prevailed. We therefore, had and, and affirmed 689, Minson, 96 Or Bennett trial court. P2d 813 692, 773 holding Supreme reversed, Court review, On 20.080(2) that the defendant requirement that the “prevail prevail need that the defendant meant in the action” Bennett, the entire action. and not the counterclaim on the conclusion based It reached that at 313-15. *6 enacted. legal in the statute was context which and historical legislature statute, the enacted the time that At inju- in tort for on a counterclaim who a defendant per- person property would be the to the defendant’s ries principles in the action. That is because son who contributory negligence operation that time functioned in at any way prevent See id. at different result. as to in such “ ‘[p]revail phrases consequence, the claim’ 313. As a practical purposes, ‘prevail were, for all in the action’ and phrases practical synonymous.” all “were, Id. Because significance synonymous,” purposes, be attached to no could phrase by legislature than one rather to use the decision the other. contributory replaced legislature subsequently change comparative
negligence effect of that fault. One with prevail possible to for a tort defendant to make it was change prevail action. That in the but counterclaim by contemplated the drafters of ORS not have been would 20.080(2), their deci- it could not have affected however, so they Con- See id. at 313-14. did. to use the sion looking legal in sequently, and historical context at the recognized that the enacted, the court 20.080 was which ORS thing phrase “prevails meant one action” could have in the 20.080(2), yet might it have used in 1955 when it was 20.080(2) adopted something had ORS been different meant id. later time. See at a 20.080(2) ORS under which the conditions
Because ways changed con- operates not have been that would had statute, the templated it enacted the when Bennett court concluded that, interpreting statute, it was to focus appropriate more on the legislature’s purpose the statute than enacting on a textual “rigid Id. at analysis.” 314.
With to that regard purpose, court reasoned that 20.080(2) ORS was enacted to encourage plaintiffs who are faced with tort counterclaims of less than $4,000 to settle meritorious ones rather than reject them out hand, lest be they required pay attorney fees to defendants who pre- vail on them. That policy would be undermined if a defendant had to in the action prevail as well as on the counterclaim. That is because a plaintiff who had a larger, meritorious claim could ignore smaller counterclaim with relative on the impunity ground that, however it likely defendant would on the prevail counterclaim, the defendant would not likely prevail the action because the plaintiff would likely receive the award, net as the plaintiff had in Bennett. The court avoided that result by interpreting 20.080(2) phrase in the “prevails action” in ORS to mean on the “prevails counterclaim in the action.” Nee id. at 315. The considerations that prompted the Bennett court it interpret did with force apply equal ORS 20.096. When the latter statute is examined terms of its history, purpose context, becomes that the apparent reference to the “prevailing party” in ORS 20.096 was intended to mean the *7 on claims that are subject statute, not the party who on all in prevails claims the action.
ORS 20.096 was enacted in 1971. 1971, See Or Laws 202, ch 1. At that time, the § statutes joinder of governing claims were quite restrictive. See ORS 16.220 (1969), former by Or Laws repealed 1977, 356, ch 1; ORS 16.290 § former 1979, Or Laws ch repealed 284, 199; ORS § former 16.300 (1969), repealed by Or Laws ch 158, 6. As a § who consequence, party on a claim prevailed involving contract that contained an attorney-fee would provision almost be the certainly who party in the action. prevailed Under that circumstance, no particular can be significance attached to the use of the phrase “prevailing party” 20.096, because the drafters of the statute would not have
379 prevail distinguish parties on con- who thought between to prevail the action.2 in those who claims and tract legislature’s purpose background, Against the that interpretation, enacting to its becomes critical ORS 20.096 in above, in Bennett. As noted case ORS 20.080 the with as was reciprocal the to make enacted ORS 20.096 the attorney contain right fees contracts that under to recover attorney-fee provisions. make enact the statute to It did not attorney depend recovery on fees such claims on of the prevailed prevailed party in them also on the who whether to Bennett, reference consistent with Hence, the action. interpreted be to in ORS 20.096 should the mean the subject party to on the claims that are gave interpretation Zidell is not the that 20.096. That ORS interpre statute, so overrule Zidell. Under correct the tation of we entitled his 20.096, ORS defendant is to recover subject prevailing on claim that is to an fees for fees under ORS 20.096. award claims that our dissent with the court’s treatment of it in American statute conflicts Supply, P2d 521 v. D & L Oil 283 Or 583 Petrofina interpreta- fact, In American confirms our Petrofina multiple in There in Ameri- tion, albeit dictum. were claims only subject one of which an award of Petrofina, can was to deciding party was under ORS 20.096. In which fees, entitled to the court focused claim that was to and that ORS 20.096 concluded under was that the statute had precisely Id. & we that claim. at 196-200 n 6. That is what have done this case.3 2 (similar Bennett, 20.080); regarding Amer at 313 conclusion ORS Cf. (court (1978) Supply, 183, 198-200, v. D & L Oil Or P2d 521
ican Petrofina parties involv contract would not make such a distinction in case assumed claims). ing quasi-contractual and related contractual counts, pleaded one for The claim at was a claim had been two issue recovery quantum The court con of a written contract and one meruit. breach hence, and, that the on that claim cluded 20.096, ORS party entitled to an award of fees under even interpreted on the contract The court the statute defendant had count. single require pleaded claim is in contract that result when a alternative counts impractical distinguish quasi-contract. that it be between and It reasoned would 20.096, awarding attorney fact- because fees under the counts necessarily expected distinguish be those counts would between finders claim, parties presumably intend the resolving because to contracts would
380
Finally, quotes the dissent a statement from Mult County (1881), Sliker, nomah v. 10 65, Or that courts should adhere doctrine of stare decisis “unless error is plainly agree shown exist.” We with that statement. We plainly Zidell interpret overrule because the court erred in ing ORS 20.096. object
Plaintiff does not to the reasonableness of the request. fee request. We therefore allow the full amount of the
Petition for award of fees in the amount of $14,731.28 allowed. dissenting.
EDMONDS, J.,
majority
plaintiffs
The
holds that
unsuccessful
cross-appeal subjects
him to
fees in the amount of
judgment
$14,731.28, even
in the action inis
his
majority’s holding
contrary
favor. The
ORS
20.096(5), Supreme
interpreted
Court cases that have
20.096(5)
meaning
principles
of ORS
and to the
of stare
majority incorrectly
Moreover,
decisis.
overrules our deci
Greenway Landing
sion in Zidell
Or App
Co.,
Devel.
ten-year-old precedent.
a well-reasoned
analysis
hinges
of the issue in this case
on two
axioms of law and one fact. First, when a contract or lease
“prevailing party”
uses the term
it,
does not define
phrase
meaning
meaning
has the same
as the
ofthe identical
phrase in ORS
Carlson v. Blumenstein, 293 Or
20.096(5)
494, 499,
says
500 n
The
further
opinion:
following paragraph in its
of
fees to
provides
“ORS 20.096
an award
defines
‘the party
which the statute
as
prevailing party,
the
is
ORS
judgment
favor final
or decree
rendered.’
in whose
does
terms,
specify
its
that definition
By
the
final
whether
is the one whose favor
is
in the
or the one in
favor
judgment
rendered
action
whose
the claims
to ORS
in the
it is rendered on
20.096
* **
refer
‘prevailing party’ usually
action.
The term
does
action, Marquam
see
Invest-
an
23, 30,
545,
P2d
den
Corp. Myers,
ment
35 Or
581
rev
App
(1978),
legisla-
In this
no final
to be
in his
of
Plaintiff
entitled to
favor
defendant.
is
Weston,
on our decision Newell v.
150 Or
favor based
(1998).
More-
P2d
rev
their enactment. Walther v. Or 147, 149, 312 817 P2d (1991). interpretations part Such also of become the con- part analysis text the statute and of are of the first level of of legislative regarding intent a statute. (1995). 245, Or secondary Guzek, State v. P2d 272 majority’s analysis legislative resort to level of history improper. Supreme
Our decision in Zidell is based several precedents, part Court which are context of ORS including Supply, 20.096, American v. D & L Oil Petrofina began That case anas action money alleged to recover to be due from the products defendant and services furnished defendant, including by plaintiff a claim for reimbursement under a agreement painting ney sought with defendant. Plaintiff attor- provided painting for in the contract. Defendant *10 sought attorney a of raised number counterclaims and also fees under ORS 20.096. dant court The concluded the that defen- judgment
was entitled
for
reimbursement
connec-
painting
the
tion with
contract.
the
When
reimbursement
judgment,
was taken into account in the final
the reduction
plaintiffs original
in the amount
money judgment
the
of
claim resulted in a
argued
for the defendant. The defendant
party
that
of
statute,
it was “the
in whose
judgment
favor final
had been rendered.” The court noted:
analysis,
‘prevailed’
[thedefendant]
then,
“Undera strict
on
argue (although
the contract count and could
it has not
so)
attorney
done
that it is entitled
on
fees
that basis. We
approach
believe, however, that
an
such
would make the
application ofORS20.096unworkable.”
judgment or decreeis
rendered.’Webelieve willalsocome
probable
giving
parties
effectto
closer
intent of the
recovery
attorney
of
fees
contract for
provided a
who have
in
litigation.
of
event
defendant] is
“Therefore,
[the
as
construe the statute
we
plaintiff]
[the
because
in this case
party
the ‘prevailing
of
the cause
action
upon
entitled to
was held
pleaded
quasi-contract.
alternatively in contract and
not proper.”
defendant] was
[the
fees to
of
award
omitted.)
(Footnote
In this in Smith. in American defendant defendant Petrofina defended a No merely successfully cross-appeal. Defendant in his in the case has been or will be awarded final *11 favor. why is another reason we should overrule
There Sliker, v. County in Zidell. In Multnomah our holding the rule of stare the court said 65, regarding decisis: construing in is said be almost universal that
“[T]he rule
constitution,
adhere to the
should]
[courts
and
statutes
a different conclusion
[even
stare decisis
doctrine of
to existf.]”
shown
reached],
plainly
unless error is
might be
pertinent
The
enacted
1971. Zidell was decided in
Carlson
1982 and Jewell
Triple Enterprises,
B.
Now the same court that Zidell, decided legisla- members, constituted with different decides that the ture had different intention We 1971. should be mindful important policy appellate that an of courts of this state is certainty justice afford of administration within the changing goal posts byjudicial state. showing fiat without a plain nothing uncertainty error can lead to but Lawyers litigants the law. are entitled to make decisions prosecute appeals cross-appeals about whether to based on they what consider be settled Zidell, law. Under prosecuted cross-appeal having could have attorney without fear being against awarded him. because of Now, change, majority’s he finds himself faced with over a judgment. $14,000
Pity poor lawyer appellate who reads decisions legislative purport unchanged to discuss intent about an accordingly. Pity poor statute his and advises client client guide through who looks to settled case as a law the mine litigation. Pity field of the risks of the trial bench and the public anticipate must what the next bring previously thought this court will from what was to be legislative settled intent.
I dissent.
Riggs, joins pro tempore J. in this dissent.