In their petition for reconsideration, plaintiffs contend that we erred in reversing that part of the trial court judgment awarding attorney’s fees to them.
In the briefs filed in the original appeal to this court, the defendant (appellant) assigned error to the trial court’s awarding attorney’s fees to plaintiffs under ORS 20.080 because the amount pleaded in plaintiffs’ original complaint exceeded the sum of $1,000. Plaintiffs’ argument in opposition consisted of one paragraph contending that the case went to trial on plaintiffs’ amended complaint which clearly prayed for damages of less than $1,000, and that it was the amended complaint which controlled in determining entitlement to attorney’s fees under the statute. We construed plaintiffs’ brief to have conceded that the original complaint prayed for more than $1,000, and on this basis we held that ORS 20.080 did not authorize an award of attorney’s fees to the prevailing plaintiffs.
On reconsideration, we are satisfied that although plaintiffs did not argue the question on this ground, they did not concede that the original complaint sought more than $1,000 in damages. The original complaint set forth three alternative theories of recovery which would not have permitted recovery of more than $1,000.
Accordingly, the trial court was authorized under the statute to award attorney’s fees to the prevailing plaintiffs. That portion of our original opinion reversing the trial court’s award of attorney’s fees to plaintiffs is modified, and the judgment of the trial court is affirmed in all respects.
Reconsideration allowed. Former opinion modified.