Horton v. Nelson

Under ORS 20.105, a defendant has been wrongly awarded attorney fees as the prevailing party when the trial court erred in dismissing the plaintiff's complaint.

Horton appealed a limited judgment dismissing his claim for common-law fraud and violation of Oregon’s Unlawful Trade Practices Act (UTPA). The claim was dismissed and the defendants (Nelson) were awarded attorney fees under ORS 20.105, because Horton failed to comply with the court’s order in his fourth amended complaint to strike a request for punitive damages. Horton placed an order for a tractor with Kennedy, an employee of the Nelsons and their company. The website advertisement promised tractors in stock, but the tractor was never delivered nor was Horton refunded. The Court of Appeals held that the trial court erred in dismissing the fraud claim against Nelson based on joint tort liability and a common plan to defraud customers. As for the UTPA violations, the Court held that the claim under ORS 646.608(q) was properly dismissed because a specific time period for delivery was not promised. The Court declined to address the claim under ORS 646.608(1)(u), for unconscionable trade tactics, because Horton failed to develop an argument using an administrative rule. The Court found that the trial court erred in dismissing Horton's claim under ORS 646.608(1)(i), intent not to provide advertised goods, because Horton alleged sufficient facts. The Court found that the award of attorney fees to Nelson was in error because, since the trial court erred in dismissing Horton's complaint, Nelson was not a prevailing party. Reversed and remanded.