Pritchett v. Fry ( 1979 )

593 P.2d 1133 (1979) 286 Or. 189

Morgan S. PRITCHETT, Petitioner,
v.
Elizabeth FRY, Respondent.

CA 8936; SC 25890.

Supreme Court of Oregon, In Banc.^[*]

Submitted on Record and Briefs December 21, 1978. Decided April 24, 1979.

Morgan S. Pritchett, filed a brief in pro per.

E. Daniel Seymour, Portland, filed a brief, for respondent.

HOWELL, Justice.

The issue in this case is whether attorney fees under ORS 91.755 in a forcible entry and detainer proceeding are to be treated as part of costs or whether they must be pleaded and proved at trial. The Court of Appeals held that attorney fees were allowable as part of the cost bill. We granted plaintiff's petition for review.

The statute, O.R.S. 91.755, states in pertinent part:

"* * * reasonable attorney fees may be awarded to the prevailing party together with costs and necessary disbursements * * *."

Plaintiff filed this action to recover possession of an apartment rented to defendant. Defendant's answer consisted of a denial and a prayer for judgment, reasonable attorney fees, and costs. Judgment based on a jury verdict was entered for defendant. After judgment, defendant filed a bill of disbursements together with a memorandum and affidavit in support of attorney fees. Plaintiff filed objections to the attorney fees, but the trial court allowed defendant $275 attorney fees. On appeal, the Court of Appeals held that under the statute attorney fees were treated as costs and therefore it was unnecessary for defendant to plead and prove her right to attorney fees.

Generally in those cases in which attorney fees may be recovered, the right to attorney fees must be alleged and proven as part of the trial, and the amount of recovery is a question for the trier of the facts. State High. Com. et al. v. Kendrick et al., 227 Or. 608, 363 P.2d 1078 (1961); Draper v. Mullenex, 225 Or. 267, 357 P.2d 519 (1960).

However, when attorney fees are provided by statute as a part of "costs" they do not need to be pleaded in the complaint except as part of the prayer and:

"* * * a request for a specific amount should be made in the cost bill, and defendant may take issue, if he desires, by objecting on any basis he believes will defeat its allowance as is done when contesting any other claimed item of costs. Issue thus having been taken, it is then the duty of the plaintiff, as the proponent of its allowance, to meet by proof, if he can, such objections as the defendant may have raised. The rule is, of course, limited to those instances in which reasonable attorney fees are provided by statute as a part of costs." Tiano v. Elsensohn, 268 Or. 166, 170, 520 P.2d 358, 360 (1974).

In those cases in which we have previously held that attorney fees were to be determined as part of the costs, the language of the statutes involved indicated that result. In Tiano the statute provided that "there shall be taxed and allowed to the plaintiff, as a part of the costs of the action, a reasonable amount to be fixed by the court as attorney fees." O.R.S. 20.080(1). In State ex rel. Nilsen v. Adams, 248 Or. 269, 431 P.2d 270, 433 P.2d 831 (1967), the statute provided that the prevailing party was entitled to recover "in addition to other costs, such sum as the court or judge may adjudge reasonable as attorney's fees * *." O.R.S. 652.330(1)(b).

The statute in this case, O.R.S. 91.755, does not provide that attorney fees are to be considered a part of costs, but states that attorney fees are to be awarded "together with costs," thus implying that attorney fees and costs are distinct items. Moreover, in Pacific N.W. Dev. Corp. v. Holloway, 274 Or. 367, 546 P.2d 1063 (1976), we specifically held, albeit in a different context, that ORS 91.755 "does not provide for attorney fees as costs * * *." 274 Or. at 371, 546 P.2d at 1065. See also Holt v. Rice, 282 Or. 203, 578 P.2d 393 (1978), where we stated that a statute awarding costs and disbursements "together with reasonable attorney fees" normally would not be read to mean that costs include attorney fees.^[1]

We hold that this case is controlled by our decision in Pacific N.W. Dev. Corp., supra, and that reasonable attorney fees may be recovered under ORS 91.755 only if they are pleaded and proved at trial.

Reversed.

NOTES

[*] Bryson, J., did not participate in this decision.

[1] Holt v. Rice, 282 Or. 203, 578 P.2d 393 (1978), dealt with ORS 128.270, which provides in relevant part:

"* * * the court shall tax the costs and disbursements of the proceedings, together with reasonable attorney's fees, * * *."

We said:

"While the language `together with reasonable attorney's fees' standing alone would not indicate that attorney's fees were intended to be a part of costs, when it becomes apparent that the sureties on the undertaking are responsible for any attorney's fees allowed and the undertaking is for `costs and disbursements' only, the conclusion is inescapable that the legislature in this instance intended that attorney fees be part of costs and disbursements. * * *" 282 Or. at 213, 578 P.2d at 399.