TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, an Oregon municipal corporation, Petitioner on Review,
Joseph Y. AIZAWA, et al., Defendants, and Deborah L. NOBLE-IRONS, nka Deborah L. Noble, Respondent on Review.
and Submitted March 8, 2017
review from the Court of Appeals (CC 1108-10129; CA A155714;
S.C. S064112). [*]
M. Garza, Law Offce of Keith M. Garza, Oak Grove, argued the
cause and fled the brief for petitioner on review. Also on
the brief was Erik Van Hagen, Portland.
D. Stadtler, Dunn Carney Allen Higgins & Tongue LLP,
Portland, argued the cause for respondent on review. Brian R.
Talcott fled the brief with Joshua D. Stadtler.
Balmer, Chief Justice, and Kistler, Walters, Landau,
Nakamoto, Flynn, and Duncan, Justices. [**]
Or. 2] Case Summary: After accepting TriMet's offer of
compromise in a condemnation action, defendant sought to
recover both the pre-offer fees that she had incurred in
litigating the action and the post-offer fees that she had
incurred in determining the amount of the fee award. The
trial court and the Court of Appeals rejected TriMet's
argument that ORS 35.300(2) precluded defendant from
recovering the fees that she had incurred in determining the
amount of the fee award. The Supreme Court affirmed.
Held: In enacting ORS 35.300(2), the legislature did
not intend to depart from Oregon's usual method of
awarding attorney fees; that is, a party may recover both the
fees incurred in litigating the fee-generating claim and the
fees incurred in determining the amount of the resulting fee
decision of the Court of Appeals and the judgment of the
circuit court are affirmed.
Or. 3] KISTLER, J.
a party entitled to recover attorney fees incurred in
litigating the merits of a fee-generating claim also may
receive attorney fees incurred in determining the amount of
the resulting fee award. See Strawn v. Farmers Ins.
Co.. 353 Or. 210, 234, 297 P.3d 439 (2013) (awarding
so-called "fees on fees" to which no objection was
raised); Crandon Capital Partners v. Sheik. 219
Or.App. 16, 42, 181 P.3d 773 (2008) (describing that rule as
reflecting "longstanding precedent in Oregon"). The
question that this case presents is whether the legislature
intended to depart from that accepted practice when it
authorized property owners to recover their attorney fees in
condemnation actions. The trial court ruled that it did not
and awarded the property owner in this case the fees that she
had incurred both in litigating the merits of the underlying
condemnation action and in determining the amount of the fee
award. The Court of Appeals affirmed. TriMet v.
Aizawa, 277 Or.App. 504, 371 P.3d 1250 (2016). We now
affirm the Court of Appeals decision and the trial
course of constructing the Portland-Milwaukie light-rail
line, Tri-County Metropolitan Transportation District of
Oregon (TriMet) sought to acquire part of the American Plaza
Condominium. Defendant Noble owned a fractional share of that
property, for which TriMet initially offered her $1, 040.
When Noble declined that offer, TriMet filed a condemnation
action against her on August 4, 2011, and ultimately
increased its offer to $22, 000. Approximately a year and a
half after TriMet filed this condemnation action, it made a
formal "offer of compromise" to Noble, which
"Pursuant to ORS 35.300, plaintiff [TriMet] offers
defendant [Noble] the amount of $22, 000 for just
compensation for the property described in the Complaint and
any compensable damages to the remaining property of
defendant. This offer does not include any amount for costs
and disbursements, attorney fees, and expenses. If the offer
is accepted, recoverable costs and disbursements, attorney
fees and expenses shall be awarded pursuant to ORS
Or. 4] Noble accepted TriMet's offer, and the parties
executed a stipulated judgment, which awarded Noble $22, 000
for her property and provided that she could petition for her
attorney "fees and costs pursuant to ORCP 68 and ORS
35.300." In petitioning for her fees, Noble sought to
recover two related but separate types of fees. First, she
sought the pre-offer fees that she had incurred in litigating
the fair market value of her property. TriMet agreed that
Noble was entitled to those fees pursuant to ORS 35.300(2).
Second, Noble sought to recover the post-offer fees that she
had incurred in determining the amount of the fee award that
she was entitled to receive under ORS 35.300(2). TriMet did
not agree that Noble could recover those fees. As noted, the
trial court disagreed with TriMet and ruled that Noble could
recover both types of fees, as did the Court of Appeals.
review, TriMet relies primarily on what it views as the
"plain text" of ORS 35.300(2) to argue that Noble
may not recover any fees that she incurred after TriMet
served her with the offer of compromise. Noble, by contrast,
relies primarily on the context of that statute and its
legislative history. She contends that the text is not as
plain as TriMet perceives and that the text, considered in
light of the statute's context and legislative history,
fits comfortably with established Oregon law, which permits a
party to recover not only the attorney fees that it incurred
in litigating the merits of a fee-generating claim but also
the attorney fees that the party incurred in determining the
amount of a reasonable fee award.
considering the parties' arguments, we first describe the
condemnation statutes briefly and then turn to the text,
context, and legislative history of the statute at issue
here, ORS 35.300. ORS chapter 35 sets out a process for
public bodies to follow in condemning private
property. At least 40 days before filing an action
to condemn private property, a public body must make a
written offer to the property owner, which the owner must
accept or [362 Or. 5] reject within a specified period of
time. ORS 35.346(1), (4). If the owner rejects the pretrial
offer, proceeds to trial, and recovers more than the public
body offered, then the owner shall receive, in addition to
compensation for the property, the owner's "costs
and disbursements including reasonable attorney fees and
reasonable expenses." ORS 35.346(7). Conversely, if the
owner rejects the public body's pretrial offer and
recovers less than that offer, the owner may not recover its
costs and fees. Id.
35.300 strikes a middle ground between those two extremes.
Subsection (1) of that statute provides that, in addition to
making a written offer to a property owner before filing a
condemnation action, a public body also may make an
"offer of compromise" up to 10 days before trial.
ORS 35.300(1). An offer of compromise must identify the
amount offered as just compensation for the
property and also may include an amount offered for
the reasonable costs and fees that the property owner has
incurred. Id. Subsections (2) through (4) then set
out three options for awarding costs and fees, which vary
depending on what the public body offered, what the property
owner accepted, and how the property owner fared if it
rejected the offer and the case went to trial.
option set out in subsection (2) applies in this case. That
subsection provides that, if an owner accepts an offer of
compromise that identifies an amount as just compensation but
does not include an amount for costs and attorney fees, then:
"the court shall give judgment to the [property owner]
for the amount offered as just compensation for the property
*** and, in addition, for costs and disbursements, attorney
[362 Or. 6] fees and expenses that are determined by the
court to have been incurred before service of the offer on
ORS 35.300(2). In TriMet's view, the text of that
subsection is unambiguous. By authorizing recovery of fees
"incurred before service of the offer, " ORS
35.300(2) precludes an award of any and all fees incurred
after that date. Noble takes a different view of the matter.
In her view, the fact that ORS 35.300(2) authorizes a limited
recovery of one type of fees (pre-offer fees incurred in
litigating the merits of a condemnation action) does not mean
that the legislature intended to preclude a litigant from
recovering a ...