Johnson and Johnson

Trial court did not err in using discretion when awarding costs (ORCP 68 B) and deciding not to award an enhanced prevailing party fee (ORS 20.190) to Appellant who prevailed on contested property claim, as both provisions are discretionary. Affirmed.

Husband and Wife in a divorce proceeding contested ownership of Mother-in-Law’s land. Wife argued that an agreement between Husband, Wife, and Mother-in Law entitled Husband and Wife to ownership of the land on which their home was built. At trial Mother-in-Law prevailed on ownership claim and was awarded $10,000 in attorney fees. Mother-in-Law appealed the award, which was lower than she had requested. Mother-in-Law argued on appeal that since she was the prevailing party under ORS 20.077, she is therefore entitled to an award of costs (ORCP 68 B) as well as an enhanced prevailing party fee (ORS 20.190). The Court held that the trial court did not err in using its discretion to determine the amount of the attorney fee award. The Court held that ORCP 68 B is discretionary, as it contained the language “unless the court otherwise directs”, and ORS 20.190(3) is also discretionary, and allows the court to decide whether it will award an enhanced fee. Affirmed.