MATTER OF SCHMIDT v. OREGON DEPT. OF TRANSP., 193 Or. App. 292 (2004)

89 P.3d 1212

In the Matter of the Suspension of the Driving Privileges of VICTOR LEE SCHMIDT, Appellant, v. OREGON DEPARTMENT OF TRANSPORTATION, DRIVER AND MOTOR VEHICLE SERVICES DIVISION (DMV), Respondent.

02C-18005; A121840.Oregon Court of Appeals.Submitted on briefs and record March 5, 2004.
Filed: April 28, 2004.

Appeal from Circuit Court, Marion County. Terry Ann Leggert, Judge.

Victor Lee Schmidt pro se.

Jas. Jeffrey Adams, Assistant Attorney General, filed the brief for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

PER CURIAM.

Award of enhanced prevailing party fee vacated; otherwise affirmed.

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PER CURIAM.

The Department of Transportation threatened to suspend petitioner’s driver’s license for failure to pay a traffic fine. ORS 809.210; ORS 809.290(2); ORS 809.415(4). Petitioner paid the fine, and the suspension never occurred. Petitioner then filed a petition for judicial review in circuit court to challenge either the department’s authority to impose the threatened suspension or the underlying fine. The trial court granted the department’s motion for summary judgment and sua sponte awarded it a $1,000 enhanced prevailing party fee. Petitioner challenges both of those actions on appeal. We reverse as to the prevailing party fee and otherwise affirm.

ORS 20.190(3) authorizes the circuit court to award an enhanced prevailing party fee “in any civil action or proceeding * * * in which recovery of money or damages is sought[.]” The state concedes that neither petitioner nor respondents are seeking recovery of money or damages and that the trial court, therefore, was without authority to award the enhanced prevailing party fee. We agree.

Petitioner’s other arguments do not require discussion.

Award of enhanced prevailing party fee vacated; otherwise affirmed.

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