Edwards v. Fenn

768 P.2d 942, 95 Or. App. 385

Opinions

PER CURIAM

In this FED action, defendants appeal from a judgment awarding restitution of leased premises to plaintiff. We affirmed the trial court without opinion, 93 Or App 625, 763 P2d 424 (1988), and defendants petition for review. We treat the petition as one for reconsideration. ORAP 10.10. The issues on the merits depended on whether plaintiff had a right to possession of the premises. Before trial, defendants abandoned the possession, and so the issue on the merits became moot. Because they had abandoned possession, contrary to what the dissent says, they could not become prevailing parties and be entitled to costs and attorney fees. The dissent’s reliance on Owen J. Jones & Son, Inc. v. Gospodinovic, 46 Or App 101, 610 P2d 1238 (1980), is misplaced. There, the defendants, who had abandoned the premises, contended that the action for possession had become moot so as to deprive the plaintiff of costs and disbursements. Here, even though issues on the merits are moot and plaintiff has been awarded restoration of the premises, defendants contend that plaintiff is not the prevailing party. The contention is self-refuting.

Reconsideration denied.