Consortium Co. v. Gradin

PER CURIAM 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 P2d 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.