HASELTON, C.J.

This case is on remand from the Oregon Supreme Court, which reversed, in part, our prior decision and remanded the case to us for further proceedings concerning three assignments of error that we either had no occasion to address in light of our disposition or need to readdress in light of its decision.1 Greenwood Products v. Greenwood Forest Products, 238 Or.App. 468, 242 P.3d 723 (2010) (Greenwood I), rev'd in part and rem'd, 351 Or. 604, 273 P.3d 116 (2012) (Greenwood II). The dispositive issue on remand concerns the denial of defendants' motion for a new trial under ORCP 64 B(4).2 For the reasons that follow, we conclude that defendants are entitled to a new trial on plaintiffs' breach of contract claim, based on "newly discovered" evidence. Accordingly, we reverse and remand in part on appeal and affirm on cross-appeal.

The Supreme Court has previously described the circumstances that gave rise to this case — as well as two other legal actions and a disciplinary proceeding — in Greenwood II and in its decision reprimanding plaintiffs' attorney for his conduct in litigating this case, In re Newell, 348 Or. 396, 234 P.3d 967 (2010). We take the background facts from our decision in Greenwood I and the Supreme Court's decisions in Greenwood II and Newell, supplemented as necessary with the undisputed facts pertinent to the issue on remand.

Forest Products "was in the business of processing and selling industrial wood products" and "maintained a large inventory of such products at numerous distribution centers throughout the United States." Greenwood II, 351 Or. at 606, 273 P.3d 116. In February 2002, Forest Products and Greenwood entered into an asset purchase agreement (APA). As pertinent, the APA provided that, (1) by the closing date, Forest Products would dismiss most of its employees who would then be rehired by Greenwood; (2) Greenwood would purchase Forest Products' inventory in seven geographically determined units for cost plus a two percent premium over a two-year period;3 and (3) until Greenwood's purchase of an inventory unit, Greenwood, for a fee, would provide Forest Products with, in the words of the APA, "all management and administrative services associated with purchasing, processing, and maintaining [Forest Products'] inventory."

As the Supreme Court recounted in Greenwood II,

351 Or at 609-11, 273 P.3d 116 (footnote omitted; omission in original).

Those circumstances gave rise to three legal actions — including this case. First, in 2004, Forest Products brought a conversion action against Fahey.5 Newell, 348 Or. at 399, 234 P.3d 967. Second, in March 2005, plaintiffs brought this action against defendants "asserting breach of contract and equitable claims for reformation or rescission of the promissory notes" and defendants asserted counterclaims, "including a claim based on plaintiffs' failure to pay the entire face value of their promissory notes to Forest Products." Greenwood II, 351 Or. at 612, 273 P.3d 116. Third, in April 2005, after being contacted by Forest Products, the district attorney brought criminal charges for theft against Fahey, who hired attorney Andrew Coit to represent him. Newell, 348 Or. at 399, 234 P.3d 967. As we will explain shortly, 264 Or.App. at 11-12, 330 P.3d at 667-68, immediately after his sentencing following the trial in this case — that is, the civil action between plaintiffs and defendants — Fahey executed an affidavit that was the focus of defendants' new trial motion based on newly discovered evidence.

In January 2006, Fahey pleaded guilty to 10 counts of theft. Newell, 348 Or. at 399, 234 P.3d 967. "As part of the plea agreement, Fahey agreed to cooperate with [Forest Products'] efforts to locate missing assets, and the trial court delayed the sentencing hearing to give Fahey time to carry out his part of the plea agreement." Id. Fahey's sentencing was scheduled for May 2, 2006 — approximately one week before trial was scheduled to begin in this case. On May 1, Coit "moved to continue Fahey's sentencing." Id. at 400, 234 P.3d 967.

Thereafter, plaintiffs' attorney, Robert Newell, learned about the request to set over Fahey's sentencing in the criminal action and that defendants had subpoenaed Fahey to testify in the trial in this case. Id. On Friday, May 5, Newell had a subpoena served on Fahey for a deposition that was scheduled to begin 14 hours later on Saturday morning at 9:00 a.m.6 Id. at 400-01, 234 P.3d 967. Although Newell served defendants' attorney, Ron Ferguson, with notice of the deposition, he "did not attempt to notify Coit[, Fahey's criminal attorney,] that he had subpoenaed Fahey."7 Id. at 401, 234 P.3d 967.

As a result, Newell and Ferguson were present the following morning, but Coit was not. Id. At the beginning of the deposition, Fahey made the following statement:

During the deposition, Newell asked Fahey questions about his work at Forest Products, as well as questions about the criminal action, including questions "about the amount of money that Fahey had taken — an issue that was central both to [plaintiffs'] lawsuit against [defendants] and also to the state's criminal charges against Fahey." Id. at 403, 234 P.3d 967. In response to many questions, Fahey asserted his Fifth Amendment privilege. In addition, he did not respond to some questions because he thought that a protective order precluded him from answering.

Nevertheless, Fahey answered many of Newell's questions. In doing so, Fahey indicated that Greenwood may not have, in fact, paid for more inventory than it had actually received. That was so based on Fahey's "theory" concerning the activities of Pattillo, Greenwood's vice president and his supervisor, in manipulating inventory amounts reflected in Forest Products' computer system. According to Fahey, Pattillo "may have phantomly * * * purchased" inventory, placed it on Forest Products' books, and "then [had] taken [it] off the books prior to those locations being sold to [Greenwood]." Fahey stated that Pattillo had instructed him to remove inventory from Forest Products' books on several occasions and that he "always requested a note or something signed or initialed" from Pattillo before doing so. According to Fahey, he placed the documentation from Pattillo in a file with other miscellaneous documents at the end of each month.

Newell also asked Fahey about his prior discussions with Ferguson as well as Forest Products' attorneys in the conversion action.9 With regard to his discussion with Ferguson, Fahey indicated that he did not recall talking about Pattillo but explained that his "attorney * * * was present at the time and our subject was incredibly limited to what we would talk about." With regard to his discussions with Forest Products' attorneys in the conversion action, Fahey said that he had not "really told [those attorneys] anything yet." Instead, Fahey explained:

On May 8, 2006 — two days after Newell took Fahey's deposition — trial in this case began. Before Fahey was scheduled to be called as a witness, Coit appeared on his behalf and filed a motion to seal the deposition transcript. There is no indication from the record on appeal that defendants objected to Coit's motion. The hearing that followed was not transcribed for this proceeding. Ultimately, the trial court granted Coit's motion and sealed the deposition transcript; however, the court did not preclude Fahey from testifying at trial.

Thereafter, defendants called Fahey as a witness outside the presence of the jury, and defendants' attorney, Ferguson, asked the following question: "Was there a time within [February 25, 2002 until December 31, 2002,] when you were instructed to remove inventory off the books of Forest Products?" At that point, Coit interjected, "Judge, I'd advise my client to invoke the Fifth Amendment on that question."

A detailed account of the discussion that ensued between Ferguson, Coit, and the trial court would not benefit the bench, bar, or public. It is sufficient to note that defendants' position was that the Fifth Amendment privilege was unavailable to Fahey, because the statute of limitations had run as to the conduct referenced in the question. Coit, however, disagreed that the privilege was necessarily unavailable, particularly in that Fahey had not yet been sentenced for the crimes to which he had pleaded guilty.10

Ultimately, the trial court indicated, "I'm not going to make any findings with regard to statutes of limitation[.]" Ferguson, defendants' attorney, sought clarification after which the following exchange occurred:

(Emphases added.)

Accordingly, Fahey did not testify before the jury. Plaintiffs, however, called Pattillo as a witness during their rebuttal case. Pattillo testified that, in light of the "checks and balances" that were in place at Forest Products, it would have been "virtually impossible" for inventory to come in and then be removed from the books.

On cross-examination, Pattillo testified that he had not had a discussion with Fahey in December 2001 concerning the ability to take funds from Forest Products and that he had been unaware of Fahey's embezzlement. Pattillo further testified that (1) he was responsible for reconciling the inventory as reflected in the computer system with the inventory reflected in the traders' spreadsheets on a monthly basis; (2) there were occasions when he instructed Fahey to make adjustments to inventory; and (3) he usually gave Fahey information concerning where the adjustment needed to be made, which "probably had [his] initial on it."

In sum, as framed by the parties, the jury's determination of the breach of contract claim reduced to a single, fundamental question: Had Greenwood paid for inventory that it did not receive from Forest Products?

Plaintiffs asserted that Schmidt's reconstruction of both companies' books revealed that Greenwood had paid Forest Products for $819,731.68 in inventory that it had not received and that Greenwood's overpayment resulted from Fahey's manipulation of the books to hide his embezzlement from Forest Products. According to plaintiffs, although Fahey was an employee of Greenwood, Fahey's actions were attributable to Forest Products because it had the right to exercise control over his actions. Conversely, for their part, defendants posited that Greenwood's overpayment, if any, was caused by Greenwood's own employees — viz., Fahey and Pattillo — who had performed accounting services for Forest Products under the management and administrative services provision of the APA and whose conduct could not be attributed to Forest Products.11

As pertinent here, "the jury returned a verdict in favor of plaintiffs on the breach of contract claim, which included damages in the amount of $819,731.68 for the overpayment of inventory." Greenwood I, 238 Or. App. at 478, 242 P.3d 723. "The jury also found in favor of defendants on their counterclaim for nonpayment on the promissory notes in the amount of $1,043,757.00."12 Id.

After the conclusion of the trial in this case, Fahey was sentenced in the criminal action. Subsequently, on May 31, 2006, Fahey executed an affidavit, which defendants submitted in support of their motion for a new trial. In that affidavit, Fahey described in detail Pattillo's conduct in instructing Fahey to remove phantom inventory from Forest Products' books before it was sold to Greenwood — which, in turn, substantiated defendants' fundamental assertion that Greenwood had not, in fact, overpaid for inventory — that is, Greenwood received exactly what it had paid for. Specifically, Fahey averred, in pertinent part:

In sum, the averments of Fahey's affidavit, if believed, established the following: After the closing date of the APA in February 2002, Pattillo (1) directed Fahey to manually manipulate inventory in Forest Products' computer system in a way that "was not in accordance with regulations governing accounting practices and procedures" and (2) gave Fahey documents "sign[ing] off" on those inventory manipulations. Because Greenwood was subject to public accounting and auditing requirements, a physical count was required before a unit of inventory was sold to Greenwood. See 264 Or.App. at 3-5, 330 P.3d at 663-64 (describing selling of inventory units). When the physical count was less than the inventory reflected in the computer system, Pattillo instructed Fahey to remove the excess inventory from the system. Moreover, based on Fahey's review of the system itself, he described the specific search queries that could be used to isolate entries resulting in the removal of inventory and substantiated that Forest Products issued checks to suppliers for the inventory that had been removed. Forest Products used a different computer database to track what occurred after the issuance of the checks, and Pattillo — not Fahey — had the ability to make entries into that database.

After Fahey executed his affidavit — but before defendants filed their motion for new trial — the court "decided plaintiffs' equitable claims [for rescission and reformation of the notes] in defendants' favor and entered a judgment awarding damages according to the jury's verdicts." Greenwood II, 351 Or. at 613, 273 P.3d 116. The court, by order, also unsealed Fahey's deposition transcript.

Defendants filed a motion for a new trial under ORCP 64 B, raising a variety of grounds. As pertinent here, defendants sought a new trial under ORCP 64 B(4), relying primarily on Fahey's affidavit as newly discovered evidence that warranted a new trial under the rule. Specifically, defendants contended that "most of the information" in Fahey's affidavit "was neither discussed nor disclosed in his deposition." In particular, unlike Fahey's deposition testimony, his affidavit "specifically identif[ied], on a step-by-step basis, exactly how manipulation of the inventory occurred" at Pattillo's instruction. Defendants explained that, although "it was generally known" to Ferguson that Pattillo had knowledge of Fahey's embezzlement, "the exact method of how this was accomplished, and the resulting manipulation of the inventory, was neither known nor capable of discovery." According to defendants, the jury's consideration of Fahey's affidavit "would have significant effect."

During the hearing on defendants' motion, the trial court indicated that, to obtain a new trial, defendants had "a pretty heavy standard burden that [it] need[ed] to meet" and that defendants "[had not] met that burden." Nevertheless, the trial court did not enter a timely order denying defendants' motion for a new trial, and, as a result, the motion was deemed denied. See ORCP 64 F(1) (so providing).

Thereafter, the trial court entered a supplemental judgment awarding plaintiffs their attorney fees on the breach of contract claim and awarding defendants their attorney fees on the counterclaim for nonpayment of the promissory notes. However, the court denied defendants their claimed expert expenses.

Defendants appealed the general judgment and the supplemental judgment for attorney fees, raising seven assignments of error. Plaintiffs cross-appealed.

On appeal, we concluded that defendants were entitled to a directed verdict on plaintiffs' breach of contract claim. Greenwood I, 238 Or.App. at 480-82, 242 P.3d 723. Our disposition obviated the need to consider defendants' third through sixth assignments of error. Id. at 482, 242 P.3d 723. However, we addressed defendants' seventh and final assignment of error pertaining to the trial court's supplemental judgment. Id. at 482-85, 242 P.3d 723. Given our reversal of the judgment on the breach of contract claim, we reversed the trial court's award of attorney fees to plaintiffs on that claim and remanded for a determination of defendants' entitlement to fees. Id. at 482-83, 242 P.3d 723. We also concluded that defendants — who were awarded attorney fees as the prevailing party on their counterclaim for nonpayment of the promissory notes — were also entitled to recover expert expenses and remanded for the trial court to award reasonable expert expenses to defendants. Id. at 482-85, 242 P.3d 723. Finally, because it had not been preserved, we rejected plaintiffs' sole contention on cross-appeal concerning the trial court's denial of plaintiffs' claim for rescission as to the promissory note issued in June 2003. Id. at 485-86, 242 P.3d 723.

On review, the Supreme Court held that "the trial court in this case properly rejected each of the grounds that defendants raised at trial for granting their motion for a directed verdict on plaintiffs' breach of contract claim." Greenwood II, 351 Or. at 620, 273 P.3d 116. As a result, the Supreme Court reversed our decision to the contrary and remanded for us to consider the following assignments of error that had been obviated by our disposition or that we needed to readdress because our decision had been predicated on defendants' entitlement to a directed verdict: (1) defendants' fifth assignment of error concerning purported instructional error; (2) defendants' sixth assignment of error concerning the denial of their new trial motion; and (3) the part of defendants' seventh assignment of error concerning the award of attorney fees to plaintiffs on their breach of contract claim.13

For the reasons that follow, we agree with defendants that they are entitled to a new trial on plaintiffs' breach of contract claim. That disposition again requires the reversal of the attorney fee award for plaintiffs and obviates the need to consider defendants' assignment of error concerning purported instructional error.14 Accordingly, we turn to the dispositive issue on remand: defendants' entitlement to a new trial on plaintiffs' breach of contract claim.

As before the trial court, relying primarily on Fahey's post-trial affidavit, defendants contend that the trial court abused its discretion in denying a new trial on the breach of contract claim, because that newly discovered evidence "disclosed [Pattillo's] involvement in embezzlement." Defendants explain that the affidavit gave a "very different" and "thorough explanation of the accounting errors and how those may not have implicated at all the accuracy of the inventory transferred to and paid for by Greenwood." According to defendants, in light of that evidence, "[t]he jury would have understood that there may well have been no inaccuracy at all with the inventory amounts transferred between the companies (this was plaintiffs' allegation of how defendants[] breached the contract)" and "probably would have changed the outcome."15

Plaintiffs remonstrate that the trial court's denial of the motion should be sustained for either of two primary alternative substantive reasons. First, the evidence was not "newly discovered" in that (according to plaintiffs) defendants failed to exercise reasonable diligence in acquiring and producing that evidence at trial. Second, defendants failed to demonstrate that the new evidence would probably change the result if a new trial is granted. With respect to the latter, plaintiffs emphasize both that defendants presented other evidence at trial in support of their contention that Greenwood had, in fact, received what it had paid for (and, thus, had not overpaid) — and that the jury, by necessary implication, had not credited that evidence.16

Pursuant to ORCP 64 B,

In State v. Arnold, 320 Or. 111, 120-21, 879 P.2d 1272 (1994), the Supreme Court held that, to justify a new trial under ORCP 64 B(4), newly discovered evidence must meet the following six requirements:

(Footnote omitted.) Although "[t]he first three requirements are independently essential," the last three "are closely related to the first." State v. Acree, 205 Or.App. 328, 334, 134 P.3d 1069 (2006).

When a trial court denies a new trial motion, "[a]ssuming that the trial court made no predicate legal error, we review the court's decision for an abuse of discretion." Id. at 330, 134 P.3d 1069. However, as we explained in Mitchell v. Mt. Hood Meadows Oreg., 195 Or.App. 431, 457, 99 P.3d 748 (2004),

As previously explained, 264 Or.App. at 15, 330 P.3d at 669, defendants' new trial motion was ultimately deemed denied because the court did not enter a timely order resolving it. Thus, the issue in this case is a legal one — that is, whether the requirements of ORCP 64 B(4) have been satisfied.

We agree with defendants that the requirements of ORCP 64 B(4) have been satisfied in this case. That is so for three salient reasons.

First, even though defendants' motion relied, in part, on the deposition transcript, the primary basis of the motion was Fahey's post-trial affidavit, which presented qualitatively different information than did the deposition transcript. During his deposition, Fahey described, in general terms, his thesis concerning Pattillo's inventory manipulation scheme involving the removal of phantom inventory from Forest Products' books and written communications to Fahey confirming Pattillo's instructions to remove such inventory. However, it was not until Fahey executed the affidavit — based on his review of the Navision database — that defendants had (1) evidence of the specific database coding and search queries that demonstrated how the removal of phantom inventory occurred and (2) evidence of the specific transactions for which checks were issued for the removed inventory. Thus, in determining whether defendants are entitled to a new trial, the proper focus is on Fahey's affidavit, not the deposition transcript.

Second, and notwithstanding plaintiffs' contentions to the contrary, defendants "could not with reasonable diligence have discovered and produced the evidence [contained in Fahey's affidavit] at the trial." Arnold, 320 Or. at 120, 879 P.2d 1272. In his affidavit in support of the new trial motion, Ferguson averred that, before trial, he had "had the occasion to have conversations with [Fahey] in the presence of his criminal attorney" and that "[s]ubstantial limitations were placed upon the questions [he] was able to ask [Fahey] by his criminal attorney, as a result of the then pending criminal charges." Further, Ferguson averred that, at the time of trial, "a significant amount of information" in Fahey's affidavit "was not know[n] to [him]" and that he did not believe that he "would have been permitted to inquire into the subject matter during [his] various conversations with [Fahey], because [of Fahey's] pending criminal prosecution."

With respect to reasonable diligence, we begin by noting that Ferguson's averments are consistent with Fahey's deposition testimony about the limitations that Coit placed on Fahey's pretrial discussions with Ferguson and Forest Products' attorneys in the conversion action described above, 264 Or. App. at 8-9, 330 P.3d at 666.17 Perhaps ironically, but for plaintiffs' unethical procurement of Fahey's deposition, defendants would not have discovered information about Fahey's thesis concerning Pattillo's purported inventory manipulation. Further, Coit's successful efforts at the time of trial in this case to seal Fahey's deposition testimony — which was unethically procured by plaintiffs and which appears to be what alerted defendants to Fahey's thesis concerning Pattillo's inventory manipulation scheme — demonstrate that Coit would not have permitted defendants to inquire into this subject matter either before or during trial. Indeed, when defendants called Fahey as a witness at trial outside the presence of the jury and attempted to inquire about Pattillo's purported inventory manipulation, Coit advised Fahey to assert his Fifth Amendment privilege — and, notwithstanding defendants' protests, the trial court effectively precluded defendants from eliciting testimony from Fahey about that manipulation. In sum, under the totality of the circumstances in this case, defendants, in the exercise of reasonable diligence, could not have discovered and presented Fahey's putative testimony, which, as set out in his post-trial affidavit, coherently and precisely detailed and substantiated how Pattillo's manipulation occurred in a way that did not result in Greenwood's overpaying for the inventory that it received from Forest Products.

Third, that new evidence is qualitatively of the sort that, if believed, "will probably change the result." Arnold, 320 Or. at 120, 879 P.2d 1272. That is, the evidence of Pattillo's scheme of directing the manipulation of "phantom inventory" as presented in the post-trial affidavit — evidence which, if believed, demonstrated that Greenwood had not overpaid Forest Products for inventory or at least substantially subverted plaintiffs' evidence to the contrary — is just the type of evidence that, if believed, "would probably lead a reasonable person to a different decision from that reached by the jury." Acree, 205 Or.App. at 337, 134 P.3d 1069. That is so, not the least, because Fahey's conduct, the direction and oversight of that conduct, and the evidence of the "reconstructed" inventory entries on which plaintiffs' claims were based, were central to this dispute. It is especially telling that, once Fahey's trial testimony had been precluded, plaintiffs, in their rebuttal case, called Pattillo to elicit testimony ostensibly refuting any possibility of the manipulation of phantom inventory.

In Acree, we noted that "there inheres in the words `will probably' an internal tension" in that "[t]he word `will' connotes certainty, whereas `probably' ordinarily means that a particular result is more likely than not to occur." 205 Or.App. at 334-35, 134 P.3d 1069. Nonetheless, we concluded that "will probably" reflects a "probability" standard. Id. at 335, 134 P.3d 1069. That conclusion was informed by the Supreme Court's prior observation that the party seeking a new trial bears the burden of showing a "state of undisputed facts."18 Id. (internal quotation marks omitted). Nevertheless, in Acree, we reversed the trial court's denial of a new trial motion based on videotaped evidence that directly rebutted the state's theory that the defendant constructively possessed the drug-related evidence and contradicted one of the state's primary witnesses. In doing so, we explained that the new evidence "would have substantially undermined the state's [constructive possession] theory" and that, once the accuracy of the state's witness's testimony "was called into question, the jury may have been more likely to credit [other testimony] that [the] defendant did not know that any drug paraphernalia was present in the house." Id. at 337, 134 P.3d 1069; see also State v. Farmer, 210 Or.App. 625, 643, 152 P.3d 904, rev. den., 342 Or. 645, 158 P.3d 508 (2007) (noting that, in some cases, our assessment of whether newly discovered evidence will probably change the result "necessarily [has been] based not on a prediction that the jury will believe the evidence but rather on an assessment that the evidence could be believed by a reasonable jury and, if so, would probably change the result").

Here, again, the evidence in Fahey's affidavit was material to the fundamental question at the core of this case: Did Greenwood pay Forest Products for inventory that Greenwood did not receive? As noted above, 264 Or.App. at 11 n. 12, 330 P.3d at 667 n. 12, the jury's answer to that question was different depending on the time period involved — that is, as to the earlier inventory purchases, the jury found that there was an overpayment (which was reflected in the verdict in favor of plaintiffs on the breach of contract claim), but, as to the final purchase reflected in the promissory notes, the jury found that there was no overpayment (which was reflected in the verdict in favor of defendants on their claim for nonpayment of the notes).

At the least, the evidence in Fahey's post-trial affidavit would have contradicted Pattillo's rebuttal testimony concerning the impossibility of someone removing inventory from Forest Products' books — and, concomitantly, would have corroborated defendants' evidence that the amounts of the final inventory purchases were accurately reflected in the notes. But even more importantly, given the jury's verdict for plaintiffs on the breach of contract claim, Fahey's affidavit directly rebutted plaintiffs' theory that Schmidt's reconstruction demonstrated that Greenwood overpaid for inventory as a result of Fahey's manipulation of the books to hide his own embezzlement from Forest Products and substantiated, in detail, the actions that Fahey took at Pattillo's direction beginning after the February 28, 2002, closing date of the APA — that is, actions that would have related to the breach of contract claim. If the accuracy of plaintiffs' theory were called into question with the contrary evidence in Fahey's affidavit about how inventory was manipulated in the Navision system without causing Greenwood to pay for inventory that it did not receive, the jury "may have been more likely to credit" other testimony supporting defendants' theory that Greenwood had not paid Forest Products for inventory that Greenwood did not receive.19 Acree, 205 Or.App. at 337, 134 P.3d 1069.

Thus, we agree with defendants that the evidence in Fahey's affidavit was "[n]ewly discovered evidence, material for [defendants], which [they] could not with reasonable diligence have discovered and produced at trial." ORCP 64 B(4). Accordingly, defendants are entitled to a new trial on plaintiffs' breach of contract claim.

Given that disposition of defendants' sixth assignment of error, we turn to defendants' seventh assignment of error pertaining to the supplemental judgment. In light of our conclusion that defendants are entitled to a new trial on the breach of contract claim, the attorney fee award to plaintiffs on that claim must be reversed. ORS 20.220(3)(a) (providing that, when a party appeals a judgment to which an award of attorney fees relates, "[i]f the appellate court reverses the judgment, the award of attorney fees or costs and disbursements shall be deemed reversed").

In sum, on remand, we conclude that defendants are entitled to a new trial on plaintiffs' breach of contract claim under ORCP 64 B(4) and, as a consequence, the award of attorney fees to plaintiffs on that claim must be reversed. Our disposition obviates the need to consider defendants' assignment of error on appeal concerning purported instructional error. Further, as explained above, 264 Or.App. at 17 n. 13, 330 P.3d at 670 n. 13, we adhere to and readopt our reasoning in Greenwood I, concerning defendants' entitlement to recover reasonable expert expenses as the prevailing party on their counterclaim for nonpayment of the promissory notes, 238 Or.App. at 482-85, 242 P.3d 723, and rejecting plaintiffs' cross-appeal, id. at 485-86, 242 P.3d 723.

On appeal, (1) general judgment on plaintiffs' claim for breach of contract reversed and remanded; otherwise affirmed; (2) plaintiffs' attorney fee award in supplemental judgment on breach of contract claim reversed and remanded; (3) defendants' attorney fee award in supplemental judgment on counterclaim for nonpayment of promissory notes remanded for the court to award reasonable expert expenses to defendants. On cross-appeal, affirmed.