ORS 19.445¹

Damages upon affirmance of judgment

Notes of Decisions

Purpose of Sec­tion

The purpose of this sec­tion is to prevent the taking of an ap­peal where there is no probable cause therefor and to impose a penalty where the purpose of the ap­peal is for delay. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

Appellate court shall impose ten percent damages for delay if it determines that judg­ment below was for recovery of money or per­sonal prop­erty, or value thereof; appellate court affirms judg­ment; and court finds that there was no probable cause for taking ap­peal. Broyles v. Brown, 295 Or 795, 671 P2d 94 (1983)

Court awarded damages under this sec­tion where defendant rejected plaintiff's offer of full amount of counterclaim on grounds that defendant wanted to see truth brought out at trial and defendant, without adequate grounds, ap­pealed award of attorney fees. Carleton v. Lowell, 107 Or App 98, 811 P2d 642 (1991), Sup Ct review denied

"Probable cause for taking the ap­peal"

Even where there is but slight merit to the ap­peal, damages under this sec­tion are inappropriate. Employers' Fire Ins. v. Love It Ice Cream, 64 Or App 784, 670 P2d 160 (1983)

Term "probable cause for ap­peal" means there is presented a case in which appellant has assigned or may assign grounds that are open to doubt or are debatable, or over which ra­tional, reasonable or honest discussion may arise. Broyles v. Brown, 295 Or 795, 671 P2d 94 (1983); Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied

Damages for taking ap­peal without probable cause may be awarded under this sec­tion even where monetary relief in underlying judg­ment consists only of costs and attorney fees. Cooper v. Maresh, 98 Or App 371, 779 P2d 200 (1989), Sup Ct review denied; Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied

Damages for Delay

Where 10 percent statutory damages are assessed under this sec­tion, appellant's surety is also liable therefor. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

The term "damages for delay" was not intended to be limited to interest on a money judg­ment or other measurable damages resulting from the delay of an ap­peal. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

Ten percent statutory damages for frivolous ap­peal may be levied whether undertaking on ap­peal is cost bond or supersedeas bond. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

Damages under ORS 19.040 include damages under this sec­tion that may be awarded on determining appellant did not have "probable cause" for ap­peal. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972); Financial Factoring v. United Electric Apparatus, 117 Or App 573, 845 P2d 215 (1993), Sup Ct review denied

Notes of Decisions

This chapter does not apply to workers' compensa­tion pro­ceed­ings since it governs appellate review of lower court decisions and not decisions of administrative tribunals. SAIF v. Maddox, 60 Or App 507, 655 P2d 214 (1982), aff'd 295 Or 448, 667 P2d 529 (1983)