McKENZIE v. ZAKLAN

PER CURIAM

Tenants appeal from an order denying their motion for attorney fees after the court entered judgment dismissing landlord's residential Forcible Entry and Detainer (FED) complaint. We reverse and remand.

The court dismissed landlord's complaint for failure to meet notice requirements under ORS 90.910(1). Tenants filed a motion for attorney fees under ORS 90.255. While the court was considering that motion, landlord filed a second complaint that commenced a new FED action against tenants. The court issued an order denying tenants' motion for attorney fees as the prevailing party in the first action. Tenants appeal that denial. Under ORS 90.255, the prevailing party is entitled to recover attorney fees in the absence of compelling circumstances that make such an award improper. Executive Mgt. Corp. v. Juckett, 274 Or. 515, 519, 547 P.2d 603 (1976). Although a subsequent FED action was pending between the parties, tenants are entitled to attorney fees as the prevailing party on the first action because the court entered judgment terminating that case in their favor. Cedar Lodge Ltd. v. Elliot, 115 Or. App. 688, 839 P.2d 757 (1992).

Reversed and remanded for award of reasonable attorney fees.