dissenting.
The parties in this case have been engaged in a protracted course of litigation that has produced at least seven appeals to our court. In the last appeal in this case, we concluded that plaintiffs’ claim under ORS 65.327(1) seeking to remove the directors of defendant Eagle-Air Estates Homeowners Association stated a claim for relief, and we reversed the trial court’s contrary ruling and remanded the case for further proceedings. Goodsell v. Eagle-Air Estates Homeowners Assn., 249 Or App 639, 650, 278 P3d 133, rev den, 352 Or 665 (2012) (Goodsell I).
On remand, the trial court encouraged plaintiffs to end the litigation, and plaintiffs took the court’s advice and dismissed their action. Defendants responded by petitioning the court under ORCP 68 C for an award of attorney fees in the amount of $78,430.50, which, among other things, included $36,038.50 in fees that defendants had incurred in their losing appellate effort in Goodsell I. The trial court ultimately awarded defendants $9,744.50 in fees. In making its award, the court excluded the fees that defendants had incurred on appeal in Goodsell I. It characterized its decision to do that as an exercise of its discretion to award a reasonable fee, reasoning that plaintiffs’ decision to take the court’s advice to dismiss their case made it appropriate for the court to treat the award of fees differently from the award that it would have made had defendants prevailed after trial.
*608Defendants appeal the attorney fee award and principally challenge the trial court’s decision to exclude from its fee award the fees that they had incurred for the time devoted to their unsuccessful defense in Goodsell I of the trial court’s dismissal of plaintiffs’ complaint. The majority agrees with defendants that the court erred in excluding those fees from its award. The majority recognizes that the trial court’s opinion letter includes references to the court’s exercise of its discretion in awarding a reasonable fee, but the majority nonetheless concludes that the trial court treated its exclusion of an award of defendants’ appellate fees in Goodsell I as presenting a legal question — viz., whether defendants were "entitled” to an award of those fees — and it concludes that the trial court erred in concluding that defendants were not entitled to an award of them. 280 Or App at 600-03.
The majority misconceives the trial court’s ruling. The trial court’s attorney fee decision presents a legal question, as the trial court itself recognized in its opinion letter, but it is not the question that the majority identifies. The question of first impression to which the trial court referred in its opinion letter is whether, in a case in the posture of this one, the trial court had discretion to exclude from its award of fees the appellate fees incurred by defendants in Goodsell 1.1 believe that the trial court had that discretion, and, hence, I would affirm the trial court’s award.
The trial court acknowledged in its opinion letter that, had defendants prevailed after a trial of plaintiffs’ claim under ORS 65.327(1), an award of reasonable attorney fees would include the time that defendants had devoted to the appeal in Goodsell I. That reflects the well-understood principle that a reasonable attorney fee will include time devoted to unavailing legal efforts in a case, such as filing an unsuccessful motion to dismiss a case, if the efforts were otherwise reasonable.
However, the trial court believed, as do I, that that principle can give way in a case such as this in which, after protracted and costly legal proceedings initiated by the parties on both sides of the current dispute, plaintiffs accepted the trial court’s advice to dismiss their complaint and thereby *609stop the collective bleeding. The trial court believed, as do I, that a fee award that did not take those circumstances into account and that, instead, made a fee award equivalent to the award that would be made had defendants prevailed after trial would penalize plaintiffs for accepting the court’s advice and would discourage future litigants from acting on similar advice, to the detriment of litigants and the court system.
Moreover, although the trial court’s opinion letter does not address the point, I believe that an exercise of discretion in the circumstances of this case can include a trial court’s assessment of the strength of plaintiffs’ claim. The appeal in Goodsell I had established that plaintiffs had alleged a legally viable claim. In light of the factual allegations in plaintiffs’ complaint, the trial court conceivably could conclude that plaintiffs had a good likelihood of prevailing on their claim if they proceeded to trial. That conclusion properly could bear on the court’s award of a reasonable fee and would support a decision not to make an award in this case that was equivalent to the award that the court would have made had defendants prevailed after trial.
In sum, I believe that the trial court correctly concluded that, inherent in its authority to award a reasonable attorney fee under a mandatory-fee statute in a case such as this, it could categorically exclude the time that defendants had devoted in Goodsell I to their unsuccessful defense on appeal of the trial court’s dismissal of plaintiffs’ complaint.1
I also believe that ORCP 54 A(3) provides further support for that conclusion. ORCP 54 A(3) provides that when, as in this case, a plaintiff acts under ORCP 54 A(l) to voluntarily dismiss the plaintiffs action,
“the judgment may include any costs and disbursements, including attorney fees, provided by contract, statute, or *610rule. Unless the circumstances indicate otherwise, the dismissed party shall be considered to be the prevailing party.”
As we noted in King v. Neverstill Enterprises, LLC, 240 Or App 727, 736 n 5, 248 P3d 30 (2011), ORCP 54 A(3)
“recognizes that voluntary dismissals can occur for a variety of reasons, not all of which make it appropriate to treat a dismissed party as the prevailing party.”
I believe that, under the circumstances of this case, in which plaintiffs accepted the trial court’s advice to end the parties’ protracted course of litigation by dismissing this action notwithstanding that Goodsell I had established the legal viability of plaintiffs’ claim, the trial court had authority under ORCP 54 A(3) to enter a judgment that designated neither party as a prevailing party. Had it done that, then defendants would not be entitled to recover any attorney fees from plaintiffs in the case.21 believe that the court’s authority under ORCP 54 A(3) to designate neither party as a prevailing party in this case adds support to the court’s discretionary decision to award defendants the amount of attorney fees that it did, that is, to make the distinctions that it did among the categories of fees that defendants sought.
In sum, I believe that the trial court acted within its discretion in making the attorney fee award to defendants that it did. The majority errs in concluding otherwise.
It bears emphasis that the time devoted by defendants to the Goodsell I appeal did not contribute in any way to the resolution of the case. In a typical case, time reasonably expended in defending an action in which a plaintiff obtains no relief can be understood to have contributed to the ultimate success of the defendant in the action. Here, however, plaintiffs dismissed their action at the court’s behest — after we had confirmed on appeal the legal viability of plaintiffs’ claim— which properly can bear on the assessment of the fees that defendants reasonably incurred to achieve the result that they did.
But cf. ORS 20.077 (prevailing party for purposes of attorney fee award is party who receives a favorable judgment); Brennan v. La Tourelle Apartments, 184 Or App 235, 243-45, 56 P3d 423 (2002) (defendant was prevailing party entitled to pursue an award of attorney fees under ORS 90.255 in action dismissed as moot).