FILED: June 15, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,
by and through its Department of Transportation,

Plaintiff-Respondent,

v.

SUZANNE L. SEIDA, et al.,

Defendants,

and

SEIDA LAND & LIVESTOCK, LLC,

Defendant-Appellant.

Lincoln County Circuit Court
091148
A143831

Thomas O. Branford, Judge.

Argued and submitted on May 05, 2011.

Russell L. Baldwin argued the cause and filed the briefs for appellant.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.

PER CURIAM

Reversed and remanded for award of prevailing party fees, costs, and disbursements; otherwise affirmed.

PER CURIAM

The state filed a petition requesting precondemnation access to defendants' property so that the state could conduct testing and surveying related to the proposed widening of a highway. Defendants moved to dismiss the petition for the reason that the matter of access was best resolved in the context of already pending litigation between the parties. The trial court granted defendants' motion to dismiss without objection from the state after it ordered in the already pending litigation that the state would have access to the property. The trial court denied defendants' request for attorney fees, costs, and a prevailing party fee, and defendants appeal. A detailed discussion of the arguments raised by the parties would not be of benefit to the bench or bar. We affirm the trial court's determination as to attorney fees, but agree with defendants that the court should have granted their request for a prevailing party fee, costs, and disbursements, and therefore we remand the case for an award of those amounts.

Reversed and remanded for award of prevailing party fee, costs, and disbursements; otherwise affirmed.


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