defining “contumacy” as “[cjontempt of court; the refusal of a person to follow a court’s order or direction”
How later courts described this case
- defining “contumacy” as “[cjontempt of court; the refusal of a person to follow a court’s order or direction”
- “[T]he only legally permissible exercise of discretion was, and is, to deny fees.” (Haselton, J., concurring)
Written by the judges who cited it.
The opinion
HASELTON, J.,
concurring.
I write separately to express my view that the error here was, in large part, of our own making.
In Aspen Group I, in which I joined, we remanded for reconsideration of the fee award. In doing so, we necessarily implied that, on these facts, under ORS 20.075(1), the trial court might possess some discretion to award fees. We were wrong in that regard. In fact, as the majority demonstrates, the only legally permissible exercise of discretion was, and is, to deny fees.
Appellate hindsight, even more than most, is 20/20. Nevertheless, the proper result in Aspen Group 1 should have been an outright reversal.