In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, “prevailing party” means the party in whose favor final judgment is rendered. [Formerly 91.755]
Since this section does not provide that attorney fees are to be considered part of costs, in order to be recovered they must be separately pleaded and proved at trial. Pacific NW Dev. Corp. v. Holloway, 274 Or 367, 546 P2d 1063 (1976); Pritchett v. Fry, 286 Or 189, 593 P2d 1133 (1979)
Where landlord initiated FED action seeking possession, tenant made counterclaim for damages, and landlord was awarded possession while tenant was awarded damages, no “prevailing party” existed and thus award of attorney fees was abuse of discretion. Marquam Investment Corp. v. Myers, 35 Or App 23, 581 P2d 545 (1978), Sup Ct review denied
Tenant represented by legal aid organization was entitled to award of attorney fees under this section. West v. French, 51 Or App 143, 625 P2d 144 (1981)
Where final judgment is rendered for possession to tenant, rent to landlord and for landlord on counterclaims, outcome is too inconclusive to warrant discretionary award of attorney fees to either party. Amatisto v. Paz, 82 Or App 341, 728 P2d 42 (1986)
Defendant, as prevailing party in landlord-tenant action, is entitled to attorney fees under this section when pleadings state claim under Residential Landlord and Tenant Act, despite plaintiff’s characterization of claim as one for common law waste. Kunce v. Van Schoonhoven, 83 Or App 458, 732 P2d 70 (1987), Sup Ct review denied
This section applies to writ of review proceeding when litigation concerns possession of rental premises under rental agreement. Whittle v. Marion County District Court, 108 Or App 463, 816 P2d 658 (1991)
Where results of proceedings were conclusive, petitioners prevailed on sole claim before court and there were no unusual circumstances, court erred in failing to exercise its discretion to award attorney fees under this section. Whittle v. Marion County District Court, 108 Or App 463, 816 P2d 658 (1991)
Attorney fees shall be awarded to prevailing party absent unusual circumstances. Tanner v. Grissom, 135 Or App 309, 898 P2d 797 (1995)
“Reasonable attorney fees” may be based on contingent fee agreement. Coulter Property Management, Inc. v. James, 160 Or App 390, 981 P2d 395 (1999)
Prevailing party’s entitlement to attorney fees in absence of unusual circumstances is additional factor court must consider under ORS 20.075 when deciding whether to award attorney fees. Stocker v. Keith, 178 Or App 544, 38 P3d 283 (2002)
Dismissal of plaintiff’s complaint makes defendant prevailing party without regard to reasons leading to dismissal. Brennan v. La Tourelle Apartments, 184 Or App 235, 56 P3d 423 (2002)
Where defendant prevails on claim and plaintiff prevails on counterclaim, both defendant and plaintiff are prevailing parties who may recover attorney fees for claims on which they prevailed. Barlow Trail Mobile Home Park v. Dunham, 189 Or App 513, 76 P3d 1146 (2003)
Where both parties prevail on claims and counterclaims, party obtaining net award under judgment is prevailing party. LeBrun v. Cal-Am Properties, Inc., 197 Or App 177, 106 P3d 647 (2005), Sup Ct review denied
Where both parties prevail on claims and counterclaims, but no damages are awarded to either party, each party is prevailing party with regard to claim on which it prevailed. LeBrun v. Cal-Am Properties, Inc., 197 Or App 177, 106 P3d 647 (2005), Sup Ct review denied
Determination whether to make discretionary award of attorney fees to prevailing party must include consideration of factors described in ORS 20.075. Barbara Parmenter Living Trust v. Lemon, 345 Or 334, 194 P3d 796 (2008)