FILED: June 28, 2000

IN THE COURT OF APPEALS OF THE STATE OF OREGON

BHAGWATI P. PODDAR,

Appellant,

v.

CLATSOP COUNTY,

Respondent.

(97-2092; CA A103154)

Appeal from Circuit Court, Clatsop County.

Charles H. Turner, Judge Pro Tem.

Submitted on record and briefs November 5, 1999.

On respondent's petition for reconsideration filed May 15, 2000. Opinion filed May 10, 2000. 167 Or App 162, __P2d__.

Blair J. Henningsgaard, Astoria, for petition.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

EDMONDS, P. J.

Reconsideration allowed; original opinion adhered to.

EDMONDS, P. J.

Defendant petitions for reconsideration of our opinion in this matter, Poddar v. Clatsop County, 167 Or App 162, __P2d__ (2000), arguing that we erred in designating plaintiff as the prevailing party. We grant reconsideration and adhere to our original opinion. Plaintiff was successful on appeal in obtaining the vacation of the supplemental judgment for attorney fees against him. However, we held that the trial court had authority to reconsider the issue of attorney fees on remand. Id. at 172. "The right to recover costs on appeal is governed by the result on appeal, not by whether the party seeking costs obtains a favorable final judgment." Akins v. Bucyrus-Erie Co., 118 Or App 471, 473, 848 P2d 124 (1993). Thus, plaintiff is the prevailing party on appeal, regardless of the trial court's decision on remand.

Reconsideration allowed; original opinion adhered to.


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