State Ex Rel. Department of Transportation v. Seida

258 P.3d 1284, 243 Or. App. 555, 2011 Ore. App. LEXIS 837

Opinion

PER CURIAM

The state filed a petition requesting precondemnation access to defendants’ property so that the state could conduct testing and surveying related to the proposed widening of a highway. Defendants moved to dismiss the petition for the reason that the matter of access was best resolved in the context of already pending litigation between the parties. The trial court granted defendants’ motion to dismiss without objection from the state after it ordered in the already pending litigation that the state would have access to the property. The trial court denied defendants’ request for attorney fees, costs, and a prevailing party fee, and defendants appeal. A detailed discussion of the arguments raised by the parties would not be of benefit to the bench or bar. We affirm the trial court’s determination as to attorney fees, but agree with defendants that the court should have granted their request for a prevailing party fee, costs, and disbursements, and therefore we remand the case for an award of those amounts.

Reversed and remanded for award of prevailing party fee, costs, and disbursements; otherwise affirmed.