B. LaVelle UNDERHILL, as Trustee of the B. LaVelle Underhill Revocable Living Trust, dated January 20, 2011, Petitioner-Respondent,
Steven A. PROCK and Kittie M. Prock, Trustees of the Steven A. Prock and Kittie M. Prock Family Trust dated August 2, 2007; D. Wendell Clodfelter and Joyce E. Clodfelter, husband and wife, Respondents-Appellants, and Ivan SKORO, et al, Respondents below.
and submitted September 17, 2018
Sherman County Circuit Court 140010CC; John A. Wolf, Judge.
J. Myers argued the cause for appellants. Also on the briefs
was Peachy & Myers, P.C.
Jo Johnson argued the cause for respondent. Also on the brief
were McEwen Gisvold, LLP, and Victor W.VanKoten and Annala,
Carey, Thompson, VanKoten & Cleaveland, P.C.
Lagesen, Presiding Judge, and James, Judge, and Sercombe,
Or.App. 187] Case Summary: Petitioner fled a petition in
circuit court to establish a statutory way of necessity, and
the circuit court dismissed the action for lack of subject
matter jurisdiction. The circuit court also denied
respondents' request for attorney fees, concluding that
attorney fees were not authorized under ORS 376.175(2) (e)
because an order dismissing the petition for lack of
jurisdiction is not "an order granting or denying the
way of necessity" within the meaning of ORS 376.175(1).
Respondents appeal. Held: The trial court did not
err. The order dismissing the action for lack of subject
matter jurisdiction was not entered after a determination of
"whether or not a need has been demonstrated for the
granting of a way of necessity," ORS 376.175(1), and it
did not grant or deny the way of necessity. Accordingly, the
dismissal was not an order within the meaning of ORS 376.175,
and an award of attorney fees was not authorized under ORS
Or.App. 188] SERCOMBE, S. J.
filed a petition in circuit court to establish a way of
necessity. The court dismissed the action because the county
governing body, which in the normal course would hear and
determine the petition, had not transferred jurisdiction to
establish ways of necessity to the circuit court under ORS
376.200. Respondents appeal from a supplemental judgment
denying their request for attorney fees under ORS
376.175(2)(e), a statute that allows attorney fees as part of
"an order granting or denying the way of
necessity." The circuit court determined that attorney
fees were not authorized under ORS 376.175(2)(e) because, as
it had dismissed the action for lack of subject matter
jurisdiction, the statutory prerequisite of "an order
granting or denying the way of necessity" had not been
met. The circuit court also found that it lacked jurisdiction
to award the requested fees. For the reasons explained below,
we affirm the court's determination that attorney fees
were not authorized by ORS 376.175(2)(e).
of necessity proceeding establishes a vehicular or utility
access easement from a public road to a landlocked parcel of
real estate. See ORS 376.150(2). Statutory ways of
necessity are governed by ORS 376.150 to 376.200. Those
statutes provide for a proceeding before the governing body
of the county in which the petitioner's land is located.
ORS 376.150 to 376.195. Under ORS 376.200, however, a county
may adopt an ordinance removing jurisdiction over the
establishment of ways of necessity from the county governing
body to the circuit court of that county.
Or.App. 189] Petitioner filed an action seeking a statutory
way of necessity over properties owned by respondents. The
petition alleged that the governing body of Sherman County
had adopted an ordinance transferring jurisdiction over the
establishment of ways of necessity to the circuit court. The
matter proceeded to trial, and, after petitioner had
presented her case-in-chief, respondents moved to dismiss for
lack of subject matter jurisdiction, contending that the
ordinance allegedly transferring jurisdiction from the county
governing body to the Sherman County Circuit Court had failed
to comply with the requirements of ORS 376.200 and was
invalid. Respondents asserted that, therefore, the
county's governing body had jurisdiction of the
proceeding and not the circuit court.
circuit court agreed with respondents and entered an order
and judgment dismissing the case for lack of jurisdiction.
Both the order granting the motion to dismiss and the
judgment of dismissal stated that, pursuant to ORS 376.175,
respondents could submit a statement of costs and attorney
submitted that statement, and petitioner objected, arguing
that the circuit court was not authorized and lacked
jurisdiction to enter an order awarding attorney fees and
costs under ORS 376.175. That statute provides, in relevant
"(1) Upon consideration of the matters and issues
presented under ORS 376.150 to 376.200, the county governing
body shall determine whether or not a need has been
demonstrated for the granting of a way of necessity under ORS
376.150 to 376.200 and shall ...