In that light, the legislative history supports the conclusion that the prevailing party who is entitled to recover attorney fees under ORS 20.096 is the party who prevails on the claims that are subject to that statute, without regard to whether the party prevails in the action. Cf. American Petrofina v. D L Supply, 283 Or. 183, 198-200, 583 P.2d 521 (1978) (court assumed that parties to contract containing attorney-fee provision would intend provision to apply to both contractual and quasi-contractual claims that arose from same transaction).Bennett v. Minson, 309 Or. 309, 787 P.2d 481 (1990), also provides support for that interpretation, even though it involved the interpretation of a different attorney-fee statute.
"If this note is placed in the hands of an attorney for collection, I/we promise and agree to pay the reasonable attorney's fees and collection costs of the holder hereof, and if suit or action is filed hereon, also promise to pay (1) holder's reasonable attorney's fees to be fixed by the trial court * * *." Citing American Petrofina v. D L Oil Supply, 283 Or. 183, 583 P.2d 521 (1978), plaintiffs took exception to the arbitrator's failure to award attorney fees, contending that, although plaintiffs had not prevailed under the promissory note, they had prevailed on the quasi-contract theory of unjust enrichment. The trial court allowed plaintiffs' exception.
281 Or at 125, n 2. See also American Petrofina v. D L Oil Supply, 283 Or. 183, 185, n 1, 583 P.2d 521 (1978). This case, unlike Hendrix, squarely presents the issue because the Court of Appeals opinion expressly adopted and applied this rule of appellate cognizance.
See also Wilkes v. Zurlinden, 328 Or. 626, 632, 984 P.2d 261 (1999) stating that "[i]f plaintiff takes nothing on its claim, then the defendant is the prevailing party under ORS 20.096 and is entitled to an award of attorney fees."). American Petrofina v. D L Oil Supply, 283 Or. 183, 583 P.2d 521 (1978). In light of the statute's language, we turn to the trial court's judgment.
Waker asserted a breach of contract claim against the partnership, and, although the jury found that South Lake was in breach, it awarded no damages. A determination of liability without a corresponding finding of damages is insufficient to establish that a party has prevailed on its breach of contract claim. See Dean Vincent, Inc. v. Krimm, 285 Or. 439, 445, 591 P.2d 740 (1979); American Petrofina v. D L Oil Supply, 283 Or. 183, 199, 583 P.2d 521 (1978). The trial court, therefore, erred in failing to award South Lake its attorney fees.
The trial court said that it was impossible to apportion the fees between the contract and restitution claims. It is not completely clear whether the court meant that the Supreme Court's holding in American Petrofina v. D L Oil Supply, 283 Or. 183, 583 P.2d 521 (1978), precluded it from apportioning fees, as a matter of law, or that, as a matter of fact, the court found it impossible to do so. To the extent that the trial court relied on American Petrofina, it erred, because that case does not apply. The court in American Petrofina simply held that the party to whom the trial court had awarded fees was not the "prevailing party" within the meaning of ORS 20.096; therefore, the award was improper.
TAT's argument is accurate but inapposite, because it presumes that the party in whose favor judgment was rendered either successfully brought a claim on a contract or successfully defended against one. TAT, however, did neither. In America Petrofina v. D L Oil Supply, 283 Or. 183, 583 P.2d 521 (1978) the plaintiff stated claims for breach of contract and quantum meruit. In a trial to the court, the breach of contract claim was rejected, but the plaintiff prevailed on the quantum meruit claim and was awarded damages of exactly one-half the amount prayed for under the contract claim.
Plaintiffs point to a number of cases in which courts held under Oregon law that a prevailing party is one who receives damages or a judgment in their favor or one who defeats another's claim for damages on the merits. See, e.g., Berger Farms v. First Interstate Bank of Or., 330 Or. 16, 20 (2000); Coughlin v. Shimizu Am. Corp., 991 F. Supp. 1226, 1232 (D. Or. 1998); Am. Petrofina Co. of Texas v. D & L Oil Supply, Inc., 283 Or. 183 (1978). These cases, however, were decided under the pre-2001 version of Oregon Revised Statute § 20.096(5)(1999), which defined prevailing party for purposes of that provision as "the party in whose favor final judgment or decree is rendered."
However, defendants successfully defended against plaintiff's claim and, thus, they are the prevailing party. See Wilkes, 328 Or. at 632 ("if a plaintiff takes nothing on its claim, then the defendant is the prevailing party under ORS 20.096"); American Petrofina v. D L Oil Supply, 283 Or. 183, 199, 583 P.2d 521 (1978) (same). Accordingly, under ORS 20.096(1), defendants are entitled to an award of attorney fees, unless for some other reason they are barred from receiving such an award.
This court has held that, if a plaintiff takes nothing on its claim, then the defendant is the prevailing party under ORS 20.096 and is entitled to an award of attorney fees. See American Petrofina v. DL Oil Supply, 283 Or. 183, 199-200, 583 P.2d 521 (1978) (interpreting former ORS 20.096(3) (1977), renumbered as ORS 20.096(5) (1979)). The question thus narrows to whether ORS 20.096(5) prevents the American Petrofina rationale from applying here, where plaintiff takes nothing on its claim and defendants take nothing on their counterclaim.