Fleming Companies v. Hamilton

Defendant Henderson1 moves for review of the trial court’s order fixing the amount of the undertaking on appeal. ORAP 8.40.2 The court required that the undertaking include both (1) an amount equal to 10 percent of the money judgment appealed, ORS 19.160, as prospective damages for prosecuting an appeal without probable cause; and (2) the amount of plaintiffs anticipated attorney fees on appeal. We conclude that the trial court did not err in including an allowance for the 10 percent penalty, but erred in including prospective attorney fees, in the undertaking. Accordingly, we modify the…