Kennedy v. Wackenhut Corp. , 42 Or. App. 435 ( 1979 )

BUTTLER, P. J.

In their cross-petition for reconsideration, respondents point out correctly that we erred in remanding the case to determine the amount of attorney fees to be allowed Kennedy for "defending against the application for the preliminary injunction in the federal court.” We agree that under Pearson v. Sigmund, 263 Or 626, 503 P2d 702 (1972), Kennedy is only entitled to money expended in securing the vacation of the preliminary injunction, including attorney fees expended for that purpose.

Accordingly, the last sentence of our original opinion is modified to read as follows: "It will be necessary for the court to determine the amount of attorney fees to be allowed Kennedy in securing the vacation of the preliminary injunction in the federal court.”

The stipulation of counsel prior to trial is sufficient to permit the trial judge to take evidence concerning the fees to be allowed after conclusion of the trial.

Cross-petition for reconsideration granted; former opinion, as modified, adhered to.