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Tri-County Metropolitan Transportation District of Oregon v. Aizawa

Supreme Court of Oregon

October 5, 2017

TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, an Oregon municipal corporation, Petitioner on Review,
v.
Joseph Y. AIZAWA, et al., Defendants, and Deborah L. NOBLE-IRONS, nka Deborah L. Noble, Respondent on Review.

          Argued and Submitted March 8, 2017

         On review from the Court of Appeals (CC 1108-10129; CA A155714; S.C. S064112). [*]

          Keith 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.

          Joshua 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.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, Flynn, and Duncan, Justices. [**]

         [362 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 award.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         [362 Or. 3] KISTLER, J.

         Ordinarily, 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 court's judgment.

         In the 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 stated:

"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 35.300(2)."

          [362 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.

         On 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.

         In 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.[1] 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.[2]

         ORS 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[3] 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.

         The 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 the [owner]."

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 ...


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