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Rathgeber v. James Hemenway8/15/2001
occupancy.' That is, in essence, a claim for interference with the right to use and enjoy property."
Plaintiffs acknowledged at oral argument that, because they never owned the property, their interest was merely an expectancy interest. They urge us to extend the rationale of Macca to protect expectancies. However, Macca applies only to claims involving an invasion of a right to enjoy property without unreasonable interference--claims that invoke nuisance, trespass or similar legal principles. See Stevens, 167 Or App at 290-91; McGregor v. Barton Sand & Gravel, Inc., 62 Or App 24, 32-33, 660 P2d 175 (1983). Here, plaintiffs' expectancy interest is rooted in defendants' undertaking to assist them in procuring property, rather than in any duty to avoid interfering with the use of property. Macca is therefore inapplicable here. Accordingly, the trial court erred in denying defendants' motion to strike plaintiffs' request for emotional distress damages. Finally, defendants assign error to the trial court's award of attorney fees to plaintiffs under ORS 646.638, a provision of the UTPA. Because we have concluded that there was no evidence to support the jury's finding that defendants violated the UTPA, plaintiffs are not the prevailing party on that claim. See Wilkes v. Zurlinden, 328 Or 626, 633, 984 P2d 261 (1999) (holding that "prevailing party" was specific to the claim and statute under which attorney fees were awarded). Accordingly, the trial court's award of attorney fees to plaintiffs under ORS 646.638 must also be reversed.
Judgment for economic damages, for violation of Unlawful Trade Practices Act, and award of attorney fees reversed; otherwise affirmed.
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