2007 ORS 20.105¹
Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis

(1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(2) All attorney fees paid to any agency of the state under this section shall be deposited to the credit of the agency’s appropriation or cash account from which the costs and expenses of the proceeding were paid or incurred. If the agency obtained an Emergency Board allocation to pay costs and expenses of the proceeding, to that extent the attorney fees shall be deposited in the General Fund available for general governmental expenses. [1983 c.763 §57; 1995 c.618 §2]

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 (Damages for frivolous or groundless appeal or appeal to delay) 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)

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)

Party asserting only frivolous claims in pleadings may not avoid award of attorney fees by introducing nonfrivolous claim at later point in pro­ceed­ings. Dept. of Revenue v. Croslin, 19 OTR 69 (2006)

Law Review Cita­tions

20 WLR 483 (1984)

  • Mail Tribune / Loren Sawyer, Nov 29, 2009
    “Dennis Powers' guest opinion about per­sonal injury lawsuits in the Mail Tribune Nov. 22, reveals a slanted view, ignoring the body of law currently on the books which controls the very problems he wants to "fix." My best guess would be that I tried over 3,000 cases as a circuit judge in Jackson and other Oregon counties for more than 40 years. ...”

1 Legislative Counsel Committee, CHAPTER 20—Attorney Fees; Costs and Disbursements, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­020.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 20, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­020ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
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.