Cusick v. Meyer

787 P.2d 1304, 100 Or. App. 635

Opinions

EDMONDS, J.

Plaintiffs move for reconsideration on the ground that we erred in concluding that defendants are entitled to attorney fees.¹ 98 Or App 358, 359, 779 P2d 198 (1989). We allow the motion, modify our former opinion and adhere to it as modified.²

In our original opinion, we reversed and remanded, holding that the trial court had erred in granting plaintiffs’ summary judgment motion on their ejectment claim but that “[attorney fees are not recoverable in an ejectment action” and that “[d]efendants were entitled to attorney fees under the contract when they prevailed on their counterclaim.” 98 Or App at 359. Plaintiffs argue that the award was “premature [because] there is no prevailing party until all claims and counterclaims have been adjudicated.” We agree.

Because the contract here does not provide differently, “prevailing party” means the party in whose favor final judgment is rendered. See ORS 20.096(5); Johns v. Park, 96 Or App 314, 321, 773 P2d 1328 (1989); Zidell v. Greenway Landing Deuel. Co., 89 Or App 525, 528, 749 P2d 1210 (1988). Thus, it is not enough that defendants prevailed on their counterclaim.³ To be entitled to attorney fees under the contract, they must also prevail in the action. See Pelett v. Welch, 71 Or App 761, 763, 694 P2d 574 (1985); Marquam Investment Corp. v. Myers, 35 Or App 23, 30-31, 581 P2d 545, rev den 284 Or 341 (1978). Because we do not know who will prevail in the action on remand, we should not have awarded attorney fees.⁴

Respondents’ motion for reconsideration allowed; decision modified to delete attorney fees award to defendants; adhered to as modified; appellants’ motion to strike respondents’ reply memorandum denied.

1 Plaintiffs raise a number of meritless grounds'that do not require discussion.

2 Defendants move to strike plaintiffs’ reply memorandum in support of their motion for reconsideration. We deny that motion.

3 Plaintiffs argue that they, not defendants, prevailed on the counterclaim. We do not agree.

4 Because we do not know whether plaintiffs will prevail on their ejectment claim or in the action, we do not decide whether an ejectment claim based on a contract that contains a provision for an award of attorney fees to the prevailing party gives rise to an award. See Rivergate Residents Assn. v. Portland Metro Area, 70 Or App 205, 211, 689 P2d 326 (1984), rev den 298 Or 553 (1985).