TriMet v. Aizawa
S064112
| Or. | Oct 5, 2017Background
- Tri-County Metropolitan Transportation District (TriMet) sought to condemn part of American Plaza Condominium; defendant Noble owned a fractional interest.
- TriMet filed condemnation after initial low offers and later made a formal offer of compromise for $22,000 under ORS 35.300, stating the offer did not include attorney fees but that recoverable fees would be awarded per ORS 35.300(2).
- Noble accepted the offer; parties entered a stipulated judgment reserving the issue of attorney fees under ORCP 68 and ORS 35.300.
- Noble petitioned for attorney fees and sought (a) pre-offer fees incurred litigating the condemnation and (b) post-offer fees reasonably incurred in litigating the fee petition ("fees on fees").
- Trial court and Court of Appeals awarded both categories; TriMet appealed arguing ORS 35.300(2) limits recovery to fees incurred before service of the offer.
- Supreme Court affirmed, holding the statute authorizes pre-offer fees and does not displace the ordinary rule permitting recovery of fees incurred in determining the amount of a fee award.
Issues
| Issue | Plaintiff's Argument (TriMet) | Defendant's Argument (Noble) | Held |
|---|---|---|---|
| Whether ORS 35.300(2) precludes recovery of any post-offer attorney fees, including fees incurred litigating a fee award | ORS 35.300(2)’s phrase "incurred before service of the offer" is unambiguous and bars any post-offer fee recovery | The statute authorizes pre-offer fees but does not displace ordinary fee-award practice (ORCP 68); post-offer “fees on fees” are recoverable | The statute does not preclude recovery of post-offer fees incurred to determine the fee award; both pre-offer fees and reasonable fees-on-fees may be awarded |
Key Cases Cited
- Strawn v. Farmers Ins. Co., 353 Or. 210, 297 P.3d 439 (Or. 2013) (awarding fees-on-fees and recognizing awardable fees for fee litigation)
- Crandon Capital Partners v. Shelk, 219 Or. App. 16, 181 P.3d 773 (Or. App. 2008) (describing longstanding Oregon precedent that ORCP 68 permits recovery of fees incurred in fee litigation)
- State v. Gaines, 346 Or. 160, 206 P.3d 1042 (Or. 2009) (methodology for statutory interpretation—text, context, legislative history)
- Figueroa v. BNSF Ry. Co., 361 Or. 142, 390 P.3d 1019 (Or. 2017) (canon that identical statutory terms are presumed to have the same meaning)