Triangle Holdings, II, LLC v. Stewart Title Guaranty Co.

337 P.3d 1013, 266 Or. App. 531, 2014 Ore. App. LEXIS 1446
CourtCourt of Appeals of Oregon
DecidedOctober 22, 2014
Docket110607932; A152602
StatusPublished
Cited by1 cases

This text of 337 P.3d 1013 (Triangle Holdings, II, LLC v. Stewart Title Guaranty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Triangle Holdings, II, LLC v. Stewart Title Guaranty Co., 337 P.3d 1013, 266 Or. App. 531, 2014 Ore. App. LEXIS 1446 (Or. Ct. App. 2014).

Opinion

TOOKEY, J.

Plaintiff, a private lender, appeals a supplemental judgment denying it attorney fees. Plaintiff’s complaint alleged a claim for reimbursement from defendant, plaintiffs title insurer, for five construction liens that plaintiff had paid. Only two of the liens are relevant to plaintiffs appeal. During the litigation below, defendant paid, and plaintiff accepted, the amount plaintiff sought for those two liens, plus interest, and moved for summary judgment. The trial court concluded that defendant was entitled to summary judgment as to those two liens on the ground that plaintiffs claim was moot because defendant had paid plaintiff the amount it sought; accordingly, the court dismissed plaintiffs claim. Then the court denied plaintiffs request for attorney fees, concluding that plaintiff had obtained no “recovery” under ORS 742.061(1) because plaintiff had not obtained a money judgment against defendant.1 Plaintiff contends that the court erred in denying its request for attorney fees on the ground that plaintiff did recover the amount plaintiff sought, albeit without entry of a judgment against defendant, because defendant’s payment of the two liens constituted a “recovery” within the meaning of ORS 742.061(1). We affirm.

The relevant facts are undisputed. Plaintiff loaned $210,000 to a builder and received a trust deed to certain real property. It obtained a title insurance policy from defendant that insured against lack of priority of plaintiff’s trust deed over construction liens on the property. In May 2010, plaintiff learned that several construction liens had been placed on the property. After notifying defendant of some of the liens, plaintiff paid the liens itself. It sought reimbursement from defendant, and, on May 10, 2011, defendant [533]*533agreed to reimburse plaintiff for the two liens relevant to this appeal. On June 6, 2011, plaintiff sent defendant documentation that defendant had requested before defendant would issue a check. On June 20, 2011, defendant sent a letter informing plaintiff that it had ordered a check and would forward it promptly. On June 21, 2011, plaintiff filed suit against defendant, seeking reimbursement for the two liens that defendant had agreed to pay as well as three others.

Subsequently, in March 2012, defendant paid plaintiff the amount plaintiff had sought for the two liens, plus interest. Plaintiff accepted the payment. The parties did not inform the court of any settlement. See ORCP 54 A, E (providing procedures for dismissal or entry of judgment after a settlement). Defendant then moved for summary judgment. As to the two liens, defendant contended that plaintiffs claim for reimbursement was moot because plaintiff had received the amount it sought. Plaintiff argued that, as to those liens, its claim was not moot because it was still entitled to attorney fees under ORS 742.061(1). After a hearing, the trial court agreed with defendant that plaintiffs claim was moot as to the two liens. The court also concluded that defendant was entitled to summary judgment as to the other three liens, which, as noted, are not at issue on appeal, and it entered a general judgment dismissing plaintiffs claim.

Then plaintiff sought attorney fees. It contended that, under ORS 742.061(1), it was entitled to fees incurred as to the two liens. That statute provides, with exceptions not relevant here, that

“if settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiffs recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon.”

Under that statute, when three requirements are met, a court must award attorney fees to an insured: First, there is no settlement within six months of the insured’s filing of proof of loss with its insurer; second, someone brings [534]*534an action on the policy; and third, the insured’s “recovery” exceeds the amount of any tender that the insurer made within the six-month period after the insured filed the proof of loss. Dockins v. State Farm Ins. Co., 329 Or 20, 34, 985 P2d 796 (1999). The term “recovery” is not defined for purposes of ORS 742.061.

Below, plaintiff argued that it had satisfied the requirements of ORS 742.061(1) because defendant had not tendered the full amount of plaintiff’s claim within six months of receiving plaintiffs proof of loss and plaintiff had recovered the full amount of its claim when defendant paid plaintiff. Thus, in plaintiffs view, its “recovery” exceeded any timely tender by defendant. In response, defendant argued that, under McGraw v. Gwinner, 282 Or 393, 578 P2d 1250 (1978), a “recovery,” for purposes of ORS 742.061, is a money judgment, and plaintiff did not obtain a money judgment; rather, plaintiffs claims were dismissed with prejudice. Defendant sought an award of costs under ORCP 68, and plaintiff objected, contending that defendant was not a prevailing party.

The trial court, after considering the text of ORS 742.061(1), and looking to McGraw and other case law, held that “a recovery is a money judgment. [Plaintiff] did not have a money judgment; ergo, no recovery.” Accordingly, it denied plaintiff’s request for attorney fees. It granted defendant’s request for costs and entered a supplemental judgment reflecting its decision.

Plaintiff appeals the supplemental judgment, assigning error only to the trial court’s denial of its request for attorney fees. On appeal, plaintiff renews the arguments it made before the trial court. It contends that the Supreme Court’s reasoning in McGraw did not resolve the issue presented here because McGraw involved a declaratory judgment action; thus, the insured in that case did not seek, or obtain, money damages. Here, plaintiff argues, it did seek money damages, and defendant ultimately paid money to plaintiff. Plaintiff contends that, if “recovery” means only a money judgment, an insurer can defeat the purpose of ORS 742.061(1) by waiting until just before — or even after — a verdict is rendered for the insured and then paying the full [535]*535amount that the insured seeks, causing the insured not to recover anything in a money judgment.

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Bluebook (online)
337 P.3d 1013, 266 Or. App. 531, 2014 Ore. App. LEXIS 1446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triangle-holdings-ii-llc-v-stewart-title-guaranty-co-orctapp-2014.