Cusick v. Meyer

I concur that our award of an attorney fee is premature at this time, because the prevailing party in the action has not been determined. I write to express disagreement with the majority’s suggestion in footnote 4 that plaintiffs on remand might have a basis for an attorney fees award if they become the “prevailing party.”

In an action at law, the prevailing party is the party receiving the greater “net” award. Pelett v. Welch, 71 Or App 761, 763, 694 P2d 574 (1985). In this case, the court awarded defendants $200 on their counterclaim for damages under the contract. Because plaintiffs…