Tri-County Metropolitan Transportation District of Oregon v. Joseph Y. Aizawa, et al.

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 P3d 439 (2013) (awarding

so-called “fees on fees” to which no objection was raised);

Crandon Capital Partners v. Shelk, 219 Or App 16, 42, 181

P3d 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

P3d 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).”

4 TriMet v. Aizawa

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

1 Statutorily, the power to condemn private property is not limited to public

bodies. See ORS 35.215(4) (recognizing that a private corporation may have the

power to exercise the right of eminent domain). For the purposes of this opinion,

we refer only to public bodies (public bodies generally or TriMet specifically) as

exercising the right to condemn private property for public use.

Cite as 362 Or 1 (2017) 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 property3 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

2 ORS 35.346(7) does not state that proposition directly. However, it provides

that an owner may recover its costs and fees “in the following cases, and no

other.” It then identifies two instances in which an owner can recover costs and

fees: (1) when the owner recovers more than the pretrial offer and (2) when the

pretrial written offer was not made in good faith. ORS 35.346(7)(a), (b).

3 ORS 35.300(1) refers to “the amount offered as just compensation for the

property and as compensable damages to the remaining property of the defendant.”

For ease of reference, we use the phrase “just compensation” to refer to

both just compensation and compensable damages to the owner’s remaining

property.

6 TriMet v. Aizawa

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 different

type of fees (fees incurred in determining the amount of the

pre-offer fee award to which the owner is entitled).

The parties’ dispute presents an issue of statutory

interpretation, which we resolve by considering the text,

context, and legislative history of ORS 35.300(2). State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (setting out

our methodology for determining the legislature’s intent).

We begin with the text of ORS 35.300(2).

ORS 35.300(2) is directed at recovering one type

of attorney fees—the fees that a property owner incurred

in litigating the merits of a condemnation action before the

public body served an offer of compromise. By definition, no

other type of attorney fees will have been incurred before

service of an offer of compromise. It follows that, in specifying

that a court shall give judgment for the fees that a property

owner incurred before the public body served an offer

of compromise, ORS 35.300(2) implies that a court shall not

give judgment for post-offer fees incurred in litigating the

merits of a condemnation action.

Whether ORS 35.300(2) also precludes recovery of

other types of post-offer fees is a question that the text of

subsection (2) does not definitively answer. It is possible to

read the text of subsection (2) as TriMet does and say that

the legislature intended to foreclose the recovery of all categories

of post-offer fees. The text of subsection (2), however,

lacks words like “only,” “all,” or “any,” which would have

made clear that the legislature intended to preclude any

and all fees that a property owner incurred after service of

Cite as 362 Or 1 (2017) 7

an offer of compromise.4 It is also possible to read the text

of subsection (2) as Noble does and say that authorizing a

limited recovery of one type of fees (pre-offer fees incurred

in litigating the merits of a condemnation claim) does not

preclude recovery of other types of post-offer fees. The text

permits either interpretation.

In seeking to determine the legislature’s intent,

we consider a statute’s context as well as its text. Stevens

v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004). Context

includes the preexisting common law, case law, and statutory

framework in which the law was enacted. Id. In this

case, two contextual sources bear on the meaning of ORS

35.300(2): prior cases interpreting ORCP 68 and the other

subsections in ORS 35.300.

ORCP 68 sets out a procedure for recovering attorney

fees. ORCP 68 C(4). The rule does not specify when a

party may recover fees; however, it defines the term “attorney

fees” for the purposes of the rule. ORCP 68 A(1). It provides

that “ ‘[a]ttorney fees’ are the reasonable value of legal

services related to the prosecution or defense of an action.”

Id. The Court of Appeals explained in Crandon Capital

Partners that “there is longstanding precedent in Oregon

[interpreting ORCP 68] that [in addition to recovering fees

incurred in litigating the merits of a fee-generating claim,]

a party may recover its attorney fees incurred as part of

the fee application and litigation process.” 219 Or App at

42; accord Strawn, 353 Or at 234 (awarding such fees). The

basis for those decisions is that the process of recovering

“attorney fees to which a * * * party is entitled by statute

is ‘related to the prosecution or defense of the action’ ” and

thus recoverable under ORCP 68. 219 Or App at 43 (quoting

ORCP 68 A(1)). TriMet does not contend otherwise. As

it acknowledged in its opening brief, “TriMet did not below

and does not here challenge the way in which the Court of

4 TriMet’s argument that ORS 35.300(2) is unambiguous depends on reading

that statute as providing that, if a property owner accepts an offer of compromise,

then “the court shall give judgment to the defendant for the amount

offered as just compensation * * * and, in addition, for [only those] costs and disbursements,

attorney fees and expenses that are determined by the court to have

been incurred before service of the offer on the defendant.” The text lacks the

bracketed words that TriMet’s interpretation presumes.

8 TriMet v. Aizawa

Appeals historically has treated the rule: ORCP 68 permits

the recovery of fees-on-fees.”

In 2009, the legislature enacted ORS 35.300 against

the backdrop of that longstanding Oregon precedent. See Or

Laws 2009, ch 530, § 5 (enacting what is now codified as

ORS 35.300); Crandon Capital Partners, 219 Or App at 43

(reaffirming that longstanding precedent). Given that context,

we think that the question in this case is more properly

framed as follows: Does ORS 35.300(2) reflect a legislative

intent to preclude a property owner who is entitled to

pre-offer fees incurred in defending a condemnation action

from recovering post-offer fees incurred in determining the

amount of the resulting fee award?

At this stage of the inquiry, our answer to that question

is “no.” As explained above, the text of ORS 35.300(2)

identifies one type of fees that shall be included in a judgment

(pre-offer fees incurred in litigating the merits of a

condemnation action). It does not provide that only those

fees may be included in the judgment, nor does it preclude a

property owner from seeking other, related fees that derive

from another source, such as ORCP 68. Authorizing an

award of pre-offer fees incurred in litigating the merits of

a claim does not preclude an award of a different type of

post-offer fees that derive from some other source. Viewing

the text of ORS 35.300(2) in the context of the attorney-fee

cases that preceded it, we think that Noble has the better of

the argument.

Another contextual clue points in the same direction:

the other subsections in ORS 35.300. As discussed

above, subsection (1) of ORS 35.300 provides that an offer of

compromise must include an offer of just compensation and

may include an offer of costs and attorney fees. Subsections

(2) through (4) then set out three options for awarding costs

and fees. Subsection (3) adds little to the understanding

of subsection (2); the two subsections effectively duplicate

each other.5 Subsection (4), however, sheds more light on the

5 As discussed above, ORS 35.300(2) specifies the costs and fees that a property

owner can recover if the owner accepts an offer that includes an amount for

just compensation but no amount for costs and fees. Subsection (3) is effectively

identical. It specifies the costs and fees that an owner can recover if the offer of

compromise contains an amount for just compensation and an amount for costs

Cite as 362 Or 1 (2017) 9

issue. That subsection specifies the costs and fees that may

be recovered if a property owner does not accept an offer of

compromise and fails to obtain a more favorable judgment

at trial.

Subsection (4) provides that, if an owner fails to

obtain a more favorable judgment than the offer of compromise:

(a) the property owner “may not recover prevailing

party fees or costs and disbursements, attorney fees

and expenses that were incurred on or after the service

of the offer”; (b) “[u]nless the parties agree otherwise, the

court shall give judgment to the [property owner] for costs

and disbursements, attorney fees and expenses that were

incurred by the [property owner] before service of the offer”;

and (c) the court shall give judgment to the public body for

its “costs and disbursements, other than prevailing party

fees, incurred by the [public body] on and after the service of

the offer.” ORS 35.300(4)(a)-(c) (emphasis added).

Subsection (4) expressly provides that, if an owner

rejects an offer of compromise and fails to obtain a more

favorable verdict at trial, the court shall award the owner

its pre-offer costs and fees, but it shall not award the owner

its post-offer costs and fees. If TriMet were correct—if the

direction in paragraph (4)(b) to award an owner the fees it

incurred in litigating the merits of a condemnation claim

before service of an offer of compromise precluded an award

of all post-offer fees—then a substantial part of subsection

(4) would be surplusage. If TriMet were correct, there

would have been no need for the legislature to prohibit,

as ORS 35.300(4)(a) does, awarding post-offer costs and

fees.6

and fees, but the owner accepts only the amount offered for just compensation.

In both instances, there will be an agreement only as to just compensation, and,

in both instances, subsections (2) and (3) provide that the owner shall recover

the agreed just compensation and “costs and disbursements, attorney fees and

expenses incurred by the [property owner] before service of the offer.” ORS

35.300(2), (3).

6 TriMet argues that ORS 35.300(4)(a) is not completely redundant because

it also prohibits awarding the property owner a prevailing party fee. However,

most of ORS 35.300(4)(a) is focused on prohibiting post-offer costs and fees, and

TriMet never explains how we can agree with its interpretation of ORS 35.300(2)

(and by extension 35.300(4)(b)) without rendering large parts of ORS 35.300

(4)(a) redundant.

10 TriMet v. Aizawa

Given ORS 35.300(4)(a), we cannot read ORS

35.300(4)(b) as broadly as TriMet does. Moreover, ORS

35.300(4)(b) is materially indistinguishable from ORS

35.300(2),7 and we assume that the legislature intended

that both provisions would have the same meaning. See

Figueroa v. BNSF Railway Co., 361 Or 142, 159, 390 P3d

1019 (2017) (“Ordinarily, we assume that, when the legislature

uses the same terms throughout a statute, those terms

have the same meaning.”). Put differently, if the other paragraphs

of ORS 35.300(4) lead us to conclude, as we do, that

ORS 35.300(4)(b) authorizes the recovery of one category of

pre-offer costs and fees and does not limit the recovery of all

categories of post-offer costs and fees, then it follows that

ORS 35.300(2) has the same meaning.

Those contextual sources shed light on the meaning

of ORS 35.300(2). Read together, the text and context of

ORS 35.300(2) direct a court to award a property owner who

accepts an offer of just compensation the reasonable costs

and fees that the owner incurred in litigating the merits of

the condemnation action before service of the offer. They do

not require a court to depart from the customary rule that a

party entitled to recover the costs and fees incurred in litigating

the merits of a fee-generating claim also may recover

the costs and fees reasonably incurred in determining the

amount of the resulting fee award.

In addition to considering the text and context,

we look to the statute’s legislative history for guidance.

See Gaines, 346 Or at 171-72. What is now codified as ORS

35.300 was enacted in 2009 as part of Senate Bill (SB) 794.

Or Laws 2009, ch 530, § 5. As initially proposed, SB 794

was relatively rudimentary. See Bill File, SB 794, Jan 26,

2009 (initial draft). It provided for a generic offer of compromise

that, if accepted, would result in a judgment. Id.

§ 5(1).8 It also provided that, if the property owner rejected

7 ORS 35.300(2) differs from ORS 35.300(4)(b) in that, in addition to directing

the trial court to include an award of pre-offer costs and fees in the judgment,

it directs the trial court to include the amount offered and accepted for just compensation.

It also differs in minor details from ORS 35.300(4)(b). However, the

two provisions are virtually identical for the purposes of the issue that this case

presents.

8 As initially drafted, the bill referred to an “offer of compromise” without

distinguishing, as the legislature later did, between amounts offered for just

Cite as 362 Or 1 (2017) 11

the offer and did not “obtain a more favorable judgment

than the offer, the [property owner] may not recover prevailing

party fees or costs and disbursements, attorney fees

or expenses * * * that were incurred after the date of the

offer.” Id. § 5(2).

Beyond that, the bill was silent regarding offers

of compromise and a property owner’s right to recover

costs and fees. The bill, as initially drafted, did not specify

whether an offer of compromise could include an offer of just

compensation without also including an offer of costs and

fees. It did not specify what would occur if a property owner

accepted an offer of compromise that included only an offer

of just compensation. Finally, although the bill specified that

a property owner who rejected an offer of compromise and

failed to obtain a more favorable verdict could not recover

post-offer costs and fees, the bill did not specify whether the

property owner could recover pre-offer costs and fees.

Oregonians in Action, a citizens group that advocates

for private property rights, raised those concerns about

the bill, even before the Senate Judiciary Committee held

its first hearing on it. Audio Recording, Senate Judiciary

Committee, SB 794, Apr 16, 2009, at 8:10:23 a.m. (testimony

of Harry Auerbach), https://olis.leg.state.or.us (accessed

Aug 28, 2017). In response, representatives from various

public bodies met with representatives from Oregonians in

Action and jointly proposed an amendment to the bill. Id.

The proposed amendment made two changes that are relevant

here. See Bill File, SB 794 (Apr 30, 2009 amendment).

First, it added a subsection to address what would occur

if an owner accepted an offer of compromise that included

an amount for just compensation but not an amount for the

owner’s costs and fees. Id. Second, it added a subsection to

address what would occur if the owner rejected an offer of

compromise and failed to obtain a more favorable judgment

at trial. Id. Both subsections were virtually identical. Each

provided, with only minor variation, that whether a property

owner accepted or rejected the offer of compromise, the

court shall give judgment to the property owner for costs

compensation and amounts offered for costs and fees. See Bill File, SB 794, Jan

26, 2009, § 5(1) (initial draft).

12 TriMet v. Aizawa

and disbursements, attorney fees, and expenses that were

incurred before the date of the offer. Bill File, SB 794 (Apr 30,

2009 amendment).

Harry Auerbach, a representative from the City of

Portland, explained the reason for the proposed amendment.

Audio Recording, Senate Judiciary Committee, SB 794, Apr 16,

2009, at 8:10:23 a.m., https://olis.leg.state.or.us (accessed

Aug 28, 2017). He told the Senate Judiciary Committee that

Oregonians in Action had been concerned that SB 794, as

initially drafted, “would have prevented [a] property owner

from recovering costs and fees incurred up to the date of

[the] offer of compromise.” Id. He said that that had not been

the drafters’ understanding or intent. Id. He then explained

that the amendment was

“designed to clarify that when the government makes an

offer of compromise during the course of the litigation, the

owner is entitled to recover costs, expenses, and attorney’s

fees incurred as of the date of the offer whether the owner

accepts the offer or whether the owner rejects the offer.”

Id. The Committee voted to adopt the proposed amendment

to SB 794 and to send the bill, as amended, to the Senate

with a do-pass recommendation.

Before the House Judiciary Committee, Auerbach

explained that all the participants had recognized that SB

794, as it emerged from the Senate, was a work in progress.

Audio Recording, House Judiciary Committee, SB 794,

May 19, 2009, at 2:38:02 p.m., https://olis.leg.state.or.us

(accessed Aug 28, 2017). Given that recognition, Auerbach

and Oregonians in Action proposed yet another amendment

to SB 794, which made primarily three changes to the bill,

none of which is relevant to the issue presented here.9 Not

surprisingly, most of Auerbach’s testimony before the House

Judiciary Committee did not touch on matters that bear

on this case. See id. However, both Auerbach and David

9 The House amendments: (1) provided a means for determining when

an offer of compromise that includes an amount for just compensation and an

amount for costs and fees would be more favorable than the result obtained at

trial; (2) added what is now codified as ORS 35.300(3); and (3) made minor wording

changes to the A-Engrossed version of SB 794. See Bill File, SB 794 (June 2,

2009 amendments).

Cite as 362 Or 1 (2017) 13

Hunnicutt, speaking on behalf of Oregonians in Action,

emphasized one point that is relevant here.

In concluding his testimony, Auerbach told the House

Judiciary Committee:

“The only other thing that I want to make sure that

I don’t forget to say is that we’re not asking through this

bill to do anything that’s unusual in civil litigation. All

we’re really trying to do is incorporate a version of what’s

already in existence generally in civil cases through the

rules of civil procedure for offers of compromise into the

specific context of eminent domain litigation. So, it’s a process

that already exists in other contexts. We’re just trying

to tailor something that’s applicable to this special kind of

proceeding.”

Id. Hunnicutt made the same point. Id. at 2:51:43 p.m. He

told the committee:

“Once the court determines that fees are entitled preand

post-offer, the amount of the fees will be determined in

the normal course. We’re not trying to change the method

for determining attorney’s fees as they are in any other

civil case. This bill doesn’t try and change that.”

Id. Having heard that testimony, the House Judiciary

Committee adopted the proposed amendment and sent

SB 794, as amended, to the House. After the House approved

the bill, the Senate acceded to the House amendments,

and the Governor signed the bill. Senate Journal, Regular

Session, 2009, S-141.

We draw two conclusions from that history. First,

ORS 35.300(2) was added to SB 794 for one reason: to make

clear that a property owner who accepts an offer of compromise

will receive the pre-offer costs and fees that the owner

incurred in litigating the merits of the condemnation action.

It was intended to authorize that category of pre-offer costs

and fees. It was not intended to limit all categories of postoffer

costs and fees. Second, both Auerbach and Hunnicutt

emphasized that SB 794 would not change the normal rules

for awarding attorney fees in civil actions. In this context,

their testimony means that SB 794 was not intended to

14 TriMet v. Aizawa

displace customary rules, such as ORCP 68, which had been

construed as permitting a party to recover both the costs

and fees incurred in litigating a fee-generating claim and

the costs and fees incurred in determining the amount of

the resulting fee award.

We also note that Auerbach’s statement—that the

bill’s drafters were “trying to * * * incorporate what’s already

in existence generally in civil cases through the rules of civil

procedure for offers of compromise”—points in the same

direction.10 While Auerbach’s reference to ORCP 54 E was

oblique, it was consistent with his and Hunnicutt’s express

point that SB 794 was not intended to change the normal

rules for determining attorney fees.

The legislative history confirms what the text, read

in context, implies: A property owner who accepts an offer

of compromise under ORS 35.300(2) may recover both the

pre-offer costs and fees reasonably incurred in litigating the

merits of the condemnation action and the post-offer costs

and fees reasonably incurred in determining the amount of

the resulting fee award.11



* * *



10 Auerbach was apparently referring to ORCP 54, which allocates costs and

fees when a party asserting a claim accepts or rejects an offer to allow judgment

on the claim. See ORCP 54 E(2), (3). ORS 35.300(2) is comparable to ORCP

54 E(2), which provides that when the party asserting a claim accepts an offer

to allow judgment, the court shall enter a stipulated judgment for the amount

offered and accepted; ORCP 54 E(2) also provides that the party asserting the

claim may recover its costs and fees “as provided in Rule 68.” When the legislature

enacted ORS 35.300, settled precedent interpreting ORCP 68 permitted

a party to recover both the costs and fees reasonably incurred in litigating the

merits of the fee-generating claim and the costs and fees reasonably incurred in

determining the amount of the resulting fee award.

11 The issue in this case is whether the direction in ORS 35.300(2) to include

an award of pre-offer costs and fees in the judgment precludes an award of the

costs and fees incurred in determining that fee award. This case does not require

us to decide whether ORS 35.300(4) limits a party’s ability to recover “fees on

fees,” and we express no opinion on that issue.

The decision of the Court of Appeals and the judgment

of the circuit court are affirmed.