
    Argued and submitted March 30,
    affirmed as modified May 23, 1984
    DIAMOND CLAIMS & INVES., INC., Respondent, v. GRENSKY, Appellant.
    
    (53-771; CA A29800)
    681 P2d 802
    David B. Mills, Medford, argued the cause for appellant. With him on the brief were Stephen R. Grensky and Grantland, Smith & Grensky, Medford.
    Henry M. Silberblatt, Portland, argued the cause and filed the brief for respondent.
    Before Richardson, Presiding Judge, and Warden and Newman, Judges.
    PER CURIAM
   PER CURIAM

Defendant appeals from a judgment that included two awards of attorney fees. We modify the judgment to delete the award, under ORS 646.638(3), of attorney fees of $383.50 for defending against defendant’s counterclaim. Plaintiff did not file a pleading alleging the facts, statute or rule that provide a basis for that award. ORCP 68C(2); see also Parkhurst v. Faessler, 62 Or App 539, 661 P2d 571 (1983).

Judgment modified to delete award of $383.50 attorney fees; affirmed as modified. 
      
       ORS 646.638(3) provides:
      “In any action brought by a person under this section, the court may award, in addition to the relief provided in this section, reasonable attorney fees at trial and on appeal and costs. If the defendant prevails, the court may award reasonable attorney fees at trial and on appeal and costs if it finds the action to be frivolous.”
     