Broyles v. Estate of Brown

I dissent. The majority has adopted a new rule interpreting ORS 19.160 and affirms the Court of Appeals. I disagree with the new rule and continue to favor the old rule. For those reasons I would reverse the Court of Appeals. An assessment of 10 percent of the damages should not be imposed against the defendant in this case.

ORS 19.160 in almost the same identical form has been a part of our laws since the Deady Code.1 During that *805period of time, this court through its case law developed the following test for the assessment of a penalty under the statute: A party who desired an appellate…