Opinion
89-4220-ZL-2; CA A75305
On respondent's petition for attorney fees filed August 12, 1993.
Petition denied June 1, 1994.
Appeal from Circuit Court, Jackson County, Loren L. Sawyer, Judge.
Rex Armstrong, Delbert D. Miller and Bogle Gates for petition.
Kim Buckley and Esler, Stephens Buckley, contra.
Before Riggs, Presiding Judge, and De Muniz and Landau, Judges.
LANDAU, J.
Petition denied.
Defendant petitions for attorney fees. We deny the petition.
Plaintiffs sued defendant for breach of contract. Defendant moved for summary judgment on the ground that it was not a party to the contract on which plaintiffs sued. The trial court granted the summary judgment motion and entered judgment in favor of defendant. We affirmed without opinion. RPR Landholding Partnership v. Safeway Stores, Inc., 122 Or. App. 152, 856 P.2d 346, rev den 318 Or. 171 (1993). Defendant then filed a petition for attorney fees incurred in preparing the appeal. In support of its petition, defendant relies on an attorney fee provision in the contract that formed the basis for plaintiffs' lawsuit:
"12. Attorneys' Fees. In the event any party hereto brings or commences legal proceedings to enforce any of the terms of this agreement, the successful party in such action shall then be entitled to receive and shall receive from the other of said parties, in every such action commenced, a reasonable sum as attorneys' fees and costs, to be fixed by the court in the same action."
Plaintiffs object, arguing that defendant cannot successfully assert that it is not a party to a contract and then petition for attorney fees on the basis of the same contract. According to plaintiffs, defendant could recover fees under the contract only if it were a party to that contract, and we have affirmed the trial court's decision that defendant was not.
We need not decide the issue plaintiffs raise. Even if, as a general proposition of law, the successful assertion that one was not a party to the contract does not preclude recovery of attorney fees under the terms of that contract, the terms of the contract provision on which defendant relies in this case do not provide defendant a basis for claiming attorney fees.
In Malot v. Hadley, 102 Or. App. 336, 794 P.2d 833 (1990), we said:
"The rule is clear: Attorney fees cannot be allowed on appeal in the absence of express language authorizing attorney fees on appeal." 102 Or App at 340 (emphasis in original; citation omitted); see also McMillan v. Golden, 262 Or. 317, 321-22, 497 P.2d 1166 (1972); Walker v. Jacobsen, 56 Or. App. 141, 143, 641 P.2d 587, rev den 293 Or. 146 (1982).
The provision in this case does not specifically provide for the recovery of attorney fees on appeal. Absent such a specific provision, attorney fees on appeal may not be awarded.
Petition denied.