Bush v. City of Prineville

“[U]pon appeal of a judgment in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment.” ORS 20.077(3)

Plaintiff-Respondent requested reconsideration of the appellate decision, assigning error to the court’s decision that Defendant-Appellants were the prevailing party and the award of court costs to Defendant-Appellants. “[U]pon appeal of a judgment in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment.” ORS 20.077(3). The Court considered a case where it reversed and remanded to provide “intermediate and, possibly, temporary success,” but designated the party against whom reversal was made as the “prevailing party on appeal.” There, the designated “prevailing party” was still entitled to “substantial” attorney fees. Here, the Court reasoned that its reversal to apportion fees between the two Defendant-Appellants did not affect Plaintiff-Respondent’s entitlement to “reasonable attorney fees.” The Court reasoned its decision was not a “substantial modification” of the judgment. The Court concluded Plaintiff-Respondent was the “prevailing party entitled to an award of costs on appeal.” Designation of prevailing party revised to designate respondent as the prevailing party on appeal and allowing costs to respondent payable by appellants.