Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis
Source:
Section 20.105 — Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis, https://www.oregonlegislature.gov/bills_laws/ors/ors020.html.
Notes of Decisions
Trial court did not err in failing to award attorney fees under this section where court concluded that it was enacted during pendency of action and could not be applied retroactively. Bahr v. Ettinger, 88 Or App 419, 745 P2d 807 (1987)
On remand, where plaintiff filed appeal despite receiving advice that he had no claim and despite having every reason to know and understand that appeal had no basis in law or fact, court awarded attorney fees and costs to defendants. Tyler v. Hartford Insurance Group, 98 Or App 601, 780 P2d 755 (1989), Sup Ct review denied
Findings on record are required to facilitate review of order concerning petitions for attorney fees. Tyler v. Hartford Insurance Group, 307 Or 603, 771 P2d 274 (1989)
Where counsel for litigant is not party to proceedings, there is no authority to enter judgment against party’s attorney for attorney fees pursuant to this section. Cooper v. Maresh, 100 Or App 293, 786 P2d 220 (1990)
Where petition for attorney fees contains only conclusory statement and does not demonstrate factual basis for findings, it is insufficient for determination. Soga v. Zimmerman, 100 Or App 363, 786 P2d 221 (1990)
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, court awarded attorney fees for appeal. Carleton v. Lowell, 107 Or App 98, 811 P2d 642 (1991), Sup Ct review denied
Repeated occurrences of willful disobedience of court orders can justify award of opposing party’s attorney fees for entire case. Dahl v. St. John, 152 Or App 748, 955 P2d 315 (1998), Sup Ct review denied
Court may award attorney fees under this section and damages under ORS 305.437 in same case. Sesma v. Dept. of Revenue, 16 OTR 29 (2002)
In determining whether claim asserted on appeal is frivolous, unreasonable or without foundation, so as to justify award of attorney fees, court may give consideration both to merits of original claim and to procedural or substantive developments during litigation. McCarthy v. Oregon Freeze Dry, Inc., 334 Or 77, 46 P3d 721 (2002)
To qualify as “prevailing party,” party must have prevailed in proceeding generally, not merely on particular claim. Mantia v. Hanson, 190 Or App 36, 77 P3d 1143 (2003), Sup Ct review denied
To determine whether there was objectively reasonable basis for taxpayer to assert claim, regular division of tax court considers whether claim was entirely devoid of legal or factual support based on substantive law governing claim at time taxpayer proceeded before that division. Patton v. Dept. of Revenue, 18 OTR 111 (2004); Daniels v. Johnson, 306 Or App 252, 473 P3d 1133 (2020)
In determining whether to award attorney fees, tax court will determine: 1) if party is represented, whether reasonable attorney would know that each argument on appeal was not warranted under existing law or reasonable argument for extension, modification or reversal of law; 2) whether party’s position is entirely devoid of legal or factual support at time complaint is filed and thereafter; and 3) whether party has advanced at least one objectively reasonable claim, defense or ground for appeal. Patton II v. Dept. of Revenue, 18 OTR 256 (2005)
Regular division of tax court may consider existence of reasoned decision by tax magistrate in determining whether party’s assertion of claim was objectively reasonable. Patton II v. Dept. of Revenue, 18 OTR 256 (2005)
Law Review Citations
20 WLR 483 (1984)
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