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Underhill v. Prock

Court of Appeals of Oregon

August 28, 2019

B. LaVelle UNDERHILL, as Trustee of the B. LaVelle Underhill Revocable Living Trust, dated January 20, 2011, Petitioner-Respondent,
v.
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.

          Argued and submitted September 17, 2018

          Sherman County Circuit Court 140010CC; John A. Wolf, Judge.

          Andrew J. Myers argued the cause for appellants. Also on the briefs was Peachy & Myers, P.C.

          Katie 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.

          Before Lagesen, Presiding Judge, and James, Judge, and Sercombe, Senior Judge.

         [299 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 376.175(2)(e).

         [299 Or.App. 188] SERCOMBE, S. J.

         Petitioner 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).

         A way 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.[1]

          [299 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.

         The 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 fees.

         Respondents 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 part:

"(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 ...

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