FILED: April 28, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

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

Appeal from Circuit Court, Marion County.

Terry Ann Leggert, Judge.

Submitted on briefs and record March 5, 2004.

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.

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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