DIAMOND CLAIMS INVES., INC., v. GRENSKY

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Docket Number

53-771; CA A29800

Attorney(S)

David B. Mills, Medford, argued the cause for appellant. With him on the brief were Stephen R. Grensky and Grantland, Smith Grensky, Medford. Henry M. Silberblatt, Portland, argued the cause and filed the brief for respondent.

Judges

PER CURIAM

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DIAMOND CLAIMS INVES., INC., Respondent, v. GRENSKY, Appellant.

PER CURIAM

Defendant appeals from a judgment that included two awards of attorney fees. We modify the judgment to delete the award, under ORS 646.638(3), of attorney fees of $383.50 for defending against defendant's counterclaim. Plaintiff did not file a pleading alleging the facts, statute or rule that provide a basis for that award. ORCP 68C(2); see also Parkhurst v. Faessler, 62 Or. App. 539, 661 P.2d 571 (1983).

ORS 646.638(3) provides:

"In any action brought by a person under this section, the court may award, in addition to the relief provided in this section, reasonable attorney fees at trial and on appeal and costs. If the defendant prevails, the court may award reasonable attorney fees at trial and on appeal and costs if it finds the action to be frivolous."

Judgment modified to delete award of $383.50 attorney fees; affirmed as modified.

DIAMOND CLAIMS INVES., INC., Respondent, v. GRENSKY, Appellant.

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