2015 ORS 20.190¹
Prevailing party fees

(1) Except as provided in subsections (2) to (5) of this section, a prevailing party in a civil action or proceeding who has a right to recover costs and disbursements in the following cases also has a right to recover, as a part of the costs and disbursements, the following additional amounts:

(a) In the Supreme Court or Court of Appeals, on an appeal, $100.

(b) In a circuit court:

(A) When judgment is given without trial of an issue of law or fact or on an appeal, $85; or

(B) When judgment is given after trial of an issue of law or fact, $105.

(c) In a small claims department, a county court or justice court:

(A) When judgment is given without trial of an issue of law or fact or on an appeal, $50; or

(B) When judgment is given after trial of an issue of law or fact, $60.

(2) In lieu of the prevailing party fee provided for in subsection (1) of this section, in any civil action or proceeding in which recovery of money or damages is sought, a prevailing party who has a right to recover costs and disbursements also has a right to recover, as a part of the costs and disbursements, the following additional amounts:

(a) In a circuit court:

(A) When judgment is given without trial of an issue of law or fact, $300; or

(B) When judgment is given after trial of an issue of law or fact, $575.

(b) In a small claims department, a county court or justice court:

(A) When judgment is given without trial of an issue of law or fact, $100; or

(B) When judgment is given after trial of an issue of law or fact, $115.

(3) In addition to the amounts provided for in subsection (2) of this section, in any civil action or proceeding in a circuit court in which recovery of money or damages is sought, the court may award to the prevailing party up to an additional $5,000 as a prevailing party fee. The court shall consider the following factors in making an award under the provisions of this subsection:

(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 a larger prevailing party 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 a larger prevailing party 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) Any award of attorney fees made to the prevailing party as part of the judgment.

(h) Such other factors as the court may consider appropriate under the circumstances of the case.

(4) Nonprevailing parties are jointly liable for the prevailing party fees provided for in this section. A court may not award more than one prevailing party fee to a prevailing party under this section, or more than one prevailing party fee against a nonprevailing party regardless of the number of parties in the action, and, upon being paid the amount of the award, the prevailing party may not seek recovery of any additional amounts under the provisions of this section from any other nonprevailing party.

(5) In any appeal from the award or denial of a prevailing party fee under subsection (2) of 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.

(6) The prevailing party fees provided for in this section may not be awarded in the following proceedings:

(a) A class action proceeding under ORCP 32.

(b) A condemnation proceeding.

(c) Proceedings under the provisions of ORS chapters 25, 107, 108, 109 and 110.

(7) Mandatory arbitration under ORS 36.400 (Mandatory arbitration programs) to 36.425 (Filing of decision and award) does not constitute a trial of an issue of law or fact for the purposes of this section. [1981 c.898 §18a; 1987 c.725 §6; 1989 c.1007 §1; 1995 c.618 §7; 1997 c.249 §13; 1997 c.801 §§56,56a; 2005 c.702 §93; 2007 c.860 §16; 2011 c.595 §170a; 2013 c.685 §44]

Note: Section 45, chapter 685, Oregon Laws 2013, provides:

Sec. 45. The amendments to ORS 20.190 (Prevailing party fees) by section 44 of this 2013 Act apply only to actions commenced on or after October 1, 2013. [2013 c.685 §45]

Notes of Decisions

Under Former Similar Statute (Ors 20.070)

Prevailing party fee cannot be included as part of costs incurred by state and chargeable to convicted crim­i­nal defendant. State v. Marino, 25 Or App 817, 551 P2d 131 (1976)

When peti­tion for review is denied, respondent has not prevailed on ap­peal and there is no basis for awarding costs. U-Cart Concrete v. Farmers Ins., 290 Or 151, 619 P2d 882 (1980)

In General

Peti­tioners were not entitled to prevailing party fees under this sec­tion where after peti­tioners filed ap­peal in Court of Appeals Board of Parole withdrew orders ap­pealed from and afforded peti­tioners relief sought from Court of Appeals. Stelljes/Dumler v. State Board of Parole, 307 Or 365, 769 P2d 177 (1989)

Where agency withdraws order challenged on judicial review under Administrative Procedures Act, peti­tioner qualifies as prevailing party. Voelz Oil v. Oregon State Fire Marshal, 138 Or App 100, 907 P2d 251 (1995)

Prevailing party fee is available in tax court only under specific tax court statutes, not general statute. Johnson v. Dept. of Revenue, 14 OTR 15 (1996)

Prevailing party fee is available as part of costs incurred by state and chargeable to peti­tioner for post-con­vic­­tion relief. Schelin v. Maass, 147 Or App 351, 936 P2d 988 (1997), Sup Ct review denied

Availability of enhanced prevailing party fee is intended to penalize improper behavior, not to provide addi­tional means of awarding attorney fees. Gough v. Vaughn, 151 Or App 536, 950 P2d 935 (1997)

Single enhanced prevailing party fee may be divided among more than one prevailing party. Seida v. West Linn-Wilsonville School District 3JT, 169 Or App 418, 9 P3d 150 (2000)

Award of costs and disburse­ments is not prerequisite to award of enhanced prevailing party fee. LeBrun v. Cal-Am Properties, Inc., 197 Or App 177, 106 P3d 647 (2005), Sup Ct review denied

Appellate court first reviews trial court evalua­tion of listed factors to see whether determina­tions of law are correct and whether some evidence supports factual findings, then, if necessary, reviews trial court decision whether to award enhanced prevailing party fee for abuse of discre­tion. Shumake v. Foshee, 197 Or App 255, 105 P3d 919 (2005)


1 Legislative Counsel Committee, CHAPTER 20—Attorney Fees; Costs and Disbursements, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors020.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 20, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano020.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.