ALTO v. STATE FIRE MARSHAL, 125 Or. App. 584 (1993)

865 P.2d 1328

John F. ALTO, W.D. Tuininga, Glenn H. Lucas, Robert C. Peck, Barry Desbiens, Gary W. Collins, Arnold Donnelly, R.J. Barman, George De Hart, and Herbert L. Thompson, Respondents — Cross-Appellants, v. STATE OF OREGON, by and through the STATE FIRE MARSHAL, Susan M. Browning, acting State Fire Marshal, Appellant — Cross-Respondent, and METROFUELING, INC., Intervenor-Appellant — Cross-Respondent.

9009-05766; CA A67834Oregon Court of Appeals.Submitted on respondents’ petition for attorney fees filed August 25, ____ (opinion on merits at 121 Or. App. 543, 855 P.2d 649).
Petition for attorney fees denied December 29, 1993.

Appeal from Circuit Court, Multnomah County., Arthur B. LaFrance, Judge pro tempore.

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Roger K. Harris, Phil Goldsmith and James, Denecke Harris for petition.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Robert Atkinson, Assistant Attorney General, contra.

Before Riggs, Presiding Judge, and De Muniz and Durham, Judges.

PER CURIAM

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

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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 P.2d 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.

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