Opinion
No. A8005-02591, CA A23787
Argued and submitted October 22, 1982.
Modified and affirmed November 3, reconsideration denied December 10, 1982. Petition for review denied January 25, 1983 ( 294 Or. 460)
Appeal from Circuit Court, Multnomah County, Charles S. Crookham, Judge.
James N. Westwood, Portland, argued the cause for appellants. With him on the brief were Fredric A. Yerke and Miller, Nash, Yerke, Wiener Hager, Portland.
Robert K. Udziela, Portland, argued the cause for respondents. With him on the brief was Pozzi, Wilson, Atchison, O'Leary Conboy, Portland.
Before Gillette, Presiding Judge, and Warden and Young, Judges.
PER CURIAM.
Amended judgment of dismissal modified by deleting paragraph relating to certain documents in escrow; affirmed as modified.
This is a declaratory judgment proceeding in which plaintiffs seek a declaration that two sets of lease options and agreements were valid. Each document contained a provision that, in the event of an action on it, the losing party would pay the other party's attorney fees. More than five days prior to trial, plaintiffs filed a notice of dismissal pursuant to ORCP 54A(1), and the trial court entered a judgment of dismissal the following day. Thereafter, defendants obtained an amended judgment awarding them $12,000 in attorney fees and ordering plaintiffs to cause certain documents to be delivered to defendants. Plaintiffs appeal.
Plaintiffs first contention — that the award of attorney fees were improper after plaintiffs had taken a dismissal under ORCP 54A(1) because defendants had not "prevailed" — has been answered contrary to plaintiffs' position in our recent opinion in Wacker Siltronic Corp. v. Pakos, 58 Or. App. 40, 646 P.2d 1366, rev den 293 Or. 635 (1982). We find no factual or procedural difference in this case that would take it out of the rule of Wacker. The award of attorney fees is affirmed.
We believe, however, that the trial court's grant of affirmative relief in the amended judgment of dismissal was erroneous. The paragraph of the amended judgment directing plaintiffs to take affirmative steps concerning certain documents held in escrow is therefore deleted. As modified, the amended judgment of dismissal is affirmed.