Holder v. Elg , 151 Or. App. 329 ( 1997 )

948 P.2d 763 (1997) 151 Or. App. 329

James R. HOLDER, Respondent,
v.
Fred E. ELG, and Vivian M. Elg, husband and wife, individually and as Trustees of the Elg Family Trust, Mark L. Elg, Glenna A. Elg and Tina L. Azzarella Fountain, all individually and doing business as GMT Rental Co. and TMG Rental Co., Old Farm Investment, Inc., an Oregon corporation and William K. Mayle, Appellants.

94-CV-263; CA A94112.

Court of Appeals of Oregon.

Argued and Submitted September 23, 1997. Decided November 19, 1997.

Shawn M. Sornson filed the briefs for appellants.

John C. Babin argued the cause for respondent. With him on the brief was Babin & Keusink, P.C.

Before RIGGS, P.J., and LANDAU and LEESON,^[*] JJ.

LEESON, Judge.

Defendants appeal from a judgment awarding attorney fees and costs to plaintiff. We review for errors of law, ORS 20.220(1), and affirm.

The procedural background of this case is complex. In February 1991, an Idaho state court awarded judgments for plaintiffs^[1] against defendants on two promissory notes worth almost $100,000. Both notes contained attorney fee provisions in the event of a successful action to collect on them. The Idaho judgments also awarded attorney fees to plaintiff. In August 1992, plaintiff filed those judgments in Multnomah County in accordance with the Uniform Enforcement of Foreign Judgments Act (UEFJA). ORS 24.105-ORS 24.185. Defendants did not satisfy the judgments. Plaintiff pursued collection in both Oregon and California, where defendants Fred and Vivian Elg, trustees of the Elg Family Trust, owned real and personal property. In September 1994, plaintiff brought an action in Oregon against defendants Fred and Vivian Elg under the Uniform Fraudulent Transfer Act (UFTA), ORS 95.200 through ORS 95.310, alleging that they had fraudulently transferred property in Oregon and California in an attempt to avoid satisfaction of the Idaho judgments. Plaintiff filed a similar action in California.

On January 2, 1996, the parties filed with the trial court a stipulation that resolved all pending issues regarding the Idaho judgments against defendants and provided that all attorney fee and cost issues should be resolved by an Oregon court. Plaintiff then filed a motion for attorney fees and costs. On March 12, 1996, the court granted the motion, awarding plaintiff $27,375.58.

Defendants appeal, assigning error to the trial court's award of attorney fees and costs to plaintiff. They argue that, under ORS 24.220(1),^[2] we must apply Idaho law as it existed at the time the Idaho judgments were entered in 1991 to determine whether plaintiff is entitled to attorney fees. That statute provides, in part, that a "foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit." According to defendants, Oregon courts must accord the final judgment of a sister state the same recognition that the judgment would receive in that state. River City Bank v. DeBenedetti, 90 Or.App. 624, 627, 752 P.2d 1305 (1988). When the Idaho judgments were entered in 1991, Idaho law did not recognize the right of post-judgment attorney fees.^[3]Allison v. John M. Biggs, Inc., 121 Idaho 567, 826 P.2d 916 (1992).^[4]

Plaintiff responds that Oregon law should govern his entitlement to attorney fees and that Oregon law recognizes a party's right to receive post-judgment fees for collection when the original judgment awarded that party attorney fees. Marquez v. Meyers, 96 Or.App. 214, 217-18, 772 P.2d 437 (1989); Johnson v. Jeppe, 77 Or.App. 685, 688, 713 P.2d 1090 (1986); see also ORS 20.096(1) (award of attorney fees to prevailing party in action to enforce contract is proper where contract provided for attorney fees). Plaintiff is correct. However, there is a conflict between Oregon and Idaho law. Oregon courts resolve substantive issues according to the law of the state having the most significant contacts with the dispute. Manz v. Continental American Life Ins. Co., 117 Or.App. 78, 80-82, 843 P.2d 480 (1992), mod on other grounds 119 Or.App. 31, 849 P.2d 549, rev. den. 317 Or. 162, 856 P.2d 317 (1993).

In this case, the judgments were entered in Idaho, but they were properly filed in Oregon, and the action to collect on them was commenced in Oregon by plaintiff, an Oregon resident. Furthermore, defendants own personal and real property in Oregon. Idaho's only contact with this collection action is that it entered the original judgments; Idaho does not have an interest in the Oregon collection action on those judgments. We conclude that Oregon has the most significant contacts regarding this collection action.^[5]

Under Oregon law, plaintiff is entitled to post-judgment attorney fees and costs in this collection action. Marquez, 96 Or.App. at 217-18, 772 P.2d 437; Johnson, 77 Or.App. at 688, 713 P.2d 1090. The trial court did not err in awarding attorney fees and costs to plaintiff.

Affirmed.

NOTES

[*] Leeson, J. vice Rossman, S.J.

[1] Plaintiffs Debra, Raymond and Christie Holder assigned the judgments to plaintiff James R. Holder by power of attorney. "Plaintiff" in this opinion refers only to James Holder.

[2] In their brief, defendants rely on ORS 22.220. There is no such provision, and we assume that defendants mean ORS 24.220(1).

[3] Defendants also argue that, because the stipulation was in response to plaintiff's action under the Uniform Fraudulent Transfers Act (UFTA), plaintiff is not entitled to an award of attorney fees. Although the UFTA does not have an attorney fees provision, each of the promissory notes on which the Idaho judgments were entered provides for attorney fees if an action to collect on the notes succeeds.

[4] In April 1994, the Idaho legislature amended its code to provide for post-judgment attorney fees for collection efforts on judgments. 1994 Idaho Sess.Laws 1113 (codified as amended at Idaho Code § 12-120(4) (1994)).

[5] In his memorandum of additional authority, to which defendants do not respond, plaintiff argues that Restatement (Second), Conflict of Laws § 101, comment c (1971), provides additional authority for his argument that "costs and other expenses of litigation incurred in a suit to enforce [a] judgment in [a] second state are allowed in accordance with the local law of the second state." We agree. Restatement (Second) Conflict of Laws § 101 provides, in part:

"A valid judgment for the payment of money will be enforced in other states only in the amount for which it is enforceable in the state where it was rendered.

"Comment:

"* * * * *

"c. Costs and other expenses of litigation incurred in the suit brought to enforce the original judgment in a second state are allowed in accordance with the local law of the second state."