TRIANGLE HOLDINGS, II, LLC, an Oregon limited liability company, Plaintiff-Appellant,
STEWART TITLE GUARANTY COMPANY, a foreign corporation, Defendant-Respondent
Argued and Submitted: June 4, 2014.
Multnomah County Circuit Court. 110607932. Henry C. Breithaupt, Judge pro tempore.
Paul G. Dodds argued the cause for appellant. With him on the briefs were Joseph M. Mabe and Brownstein Rask.
Jonathan M. Radmacher and McEwen Gisvold LLP filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[266 Or.App. 532] TOOKEY, J.
Plaintiff, a private lender, appeals a supplemental judgment denying it attorney fees. Plaintiff's complaint alleged a claim for reimbursement from defendant, plaintiff's title insurer, for five construction liens that plaintiff had paid. Only two of the liens are relevant to plaintiff's appeal. During the litigation below, defendant paid, and plaintiff accepted, the amount plaintiff sought for those two liens, plus interest, and moved for summary judgment. The trial court concluded that defendant was entitled to summary judgment as to those two liens on the ground that plaintiff's claim was moot because defendant had paid plaintiff the amount it sought; accordingly, the court dismissed plaintiff's claim. Then the court denied plaintiff's request for attorney fees, concluding that plaintiff had obtained no " recovery" under ORS 742.061(1) because plaintiff had not obtained a money judgment against defendant. Plaintiff contends that the court erred in denying its request for attorney fees on the ground that plaintiff did recover the amount plaintiff sought, albeit without entry of a judgment against defendant, because defendant's payment of the two liens constituted a " recovery" within the meaning of ORS 742.061(1). We affirm.
The relevant facts are undisputed. Plaintiff loaned $210,000 to a builder and received a trust deed to certain real property. It obtained a title insurance policy from defendant that insured against lack of priority of plaintiff's trust deed over construction liens on the property. In May 2010, plaintiff learned that several construction liens had been placed on the property. After notifying defendant of some of the liens, plaintiff paid the liens itself. It sought reimbursement from defendant, and, on May 10, 2011, defendant [266 Or.App. 533] agreed to reimburse plaintiff for the two liens relevant to this appeal. On June 6, 2011, plaintiff sent defendant documentation that defendant had requested before defendant would issue a check. On June 20, 2011, defendant sent a letter informing plaintiff that it had ordered a check and would forward it promptly. On June 21, 2011, plaintiff
filed suit against defendant, seeking reimbursement for the two liens that defendant had agreed to pay as well as three others.
Subsequently, in March 2012, defendant paid plaintiff the amount plaintiff had sought for the two liens, plus interest. Plaintiff accepted the payment. The parties did not inform the court of any settlement. See ORCP 54 A, E (providing procedures for dismissal or entry of judgment after a settlement). Defendant then moved for summary judgment. As to the two liens, defendant contended that plaintiff's claim for reimbursement was moot because plaintiff had received the amount it sought. Plaintiff argued that, as to those liens, its claim was not moot because it was still entitled to attorney fees under ORS 742.061(1). After a hearing, the trial court agreed with defendant that plaintiff's claim was moot as to the two liens. The court also concluded that defendant was entitled to summary judgment as to the other three liens, which, as noted, are not at issue on appeal, and it entered a general judgment dismissing plaintiff's claim.
Then plaintiff sought attorney fees. It contended that, under ORS 742.061(1), it was entitled to fees incurred as to the two liens. That statute provides, with exceptions not relevant here, that
" if settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney ...