Opinion
CR84-0350; CA A45972
On respondents — cross-appellants' petition for reconsideration filed February 12, of January 20, 1989, order allowing petition for attorney fees filed November 15, 1988; petition for reconsideration denied May 17, 1989
Appeal from the Circuit Court, Lincoln County, A.R. McMullen, Judge.
Jim Hilborn, Florence, for petition.
No appearance contra.
Before Rossman, Presiding Judge, and Joseph, Chief Judge, and Edmonds, Judge.
JOSEPH, C.J.
Petition for reconsideration denied.
Defendants have petitioned for review of our order awarding plaintiffs attorney fees in an action on a contract that provided for the award of attorney fees to the prevailing party in any action on the contract. Plaintiffs made a written demand for $647.32 more than ten days before the commencement of the proceedings. Defendants claim that they tendered that amount. Plaintiffs subsequently filed an action and recovered that amount as damages. We awarded attorney fees pursuant to ORS 20.096.
Defendants claim that their tender protected them against the award of attorney fees by reason of ORS 20.096 (3), which provides:
"If the plaintiff prevails in any action or suit on a contract which expressly provides for the award of attorney fees where the amount of the principal together with interest due on such contract at the time of commencement of the proceedings does not exceed $200, there shall be taxed and allowed to the plaintiff a reasonable amount to be fixed by the court as attorney fees, if the court finds that written demand for the payment of plaintiff's claim was made on the defendant not less than 10 days before the commencement of the action. However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, subsequent to such demand but prior to the commencement of the action or suit, an amount not less than the damages awarded to the plaintiffs." (Emphasis supplied.)
Defendants rely on the italicized sentence. However, they ignore the rest of the section, which specifically limits its application to situations "where the amount of principal together with interest due * * * at the time of commencement of the proceedings does not exceed $200 * * *."
Petition for reconsideration denied.