Alto v. State ex rel. State Fire Marshal

PER CURIAM

Plaintiffs petition for an award of attorney fees and costs on appeal against defendant. In Alto v. State Fire Marshal, 121 Or App 543, 553, 855 P2d 649, rev den 318 Or 97 (1993), we reversed the trial court’s order denying attorney fees and costs because plaintiffs had a right under ORCP 68C(4)(a) to file a statement and make a record of the facts required to justify a fee award. We said:

“We decline to address the parties’ conflicting arguments about plaintiffs’ right to fees until they have been addressed by the trial court.” 121 Or App at 553. (Footnote omitted.)

Plaintiffs’ petition asks us to decide whether they are entitled to fees on appeal. We decline to decide the question until the trial court decides their entitlement to fees on remand. We note that “attorney fees,” within the meaning of ORCP 68A(1), may include fees incurred on appeal.

Defendant does not object to the statement of costs and disbursements. We allow costs and disbursements in the amount claimed, $865.80. ORAP 13.05(5)(d).

Petition for attorney fees denied; costs and disbursements allowed in the sum of $865.80.