Opinion
A8603-01747; CA A47578 (Control), A8603-01746; CA A47579 (Cases consolidated)
Argued and submitted March 3, 1989
Award of attorney fees vacated; otherwise affirmed April 26, 1989
Appeal from the Circuit Court, Multnomah County, William C. Snouffer, Judge.
Michael S. Evans, Portland, argued the cause for appellants. With him on the briefs were Gary I. Grenley, and Grenley,
Rotenberg, Laskowski, Evans the Bragg, P.C., Portland, Margaret H. Leek Leiberan, Portland, argued the cause for respondents. With her on the brief was Paul Rask, Portland.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Award of attorney fees vacated; otherwise affirmed.
Plaintiffs appeal from judgments for defendants in these consolidated actions for breach of a putative real estate contract. They contend that the trial court erred by allowing defendants to amend their pleadings to conform to the proof and by directing verdicts for defendants on plaintiffs' claims. Those contentions are without merit.
Plaintiffs also assign error to the court's award of attorney fees to defendants, pursuant to the fee provision in the instrument on which plaintiffs based their actions. Defendants asserted, inter alia, that there was no agreement between the parties and, if there were, that the agreement was invalid. They are not entitled to attorney fees under the provision. See Niedermeyer v. Latimer, 307 Or. 473, 769 P.2d 771 (1989); John Deere Co. v. Epstein, 91 Or. App. 195, 755 P.2d 711 (1988), aff'd 307 Or. 348, 769 P.2d 766 (1989).
Award of attorney fees vacated; otherwise affirmed.