Emerald PUD v. PACIFICORP.

801 P.2d 141 (1990)

104 Or.App. 504

EMERALD PEOPLE'S UTILITY DISTRICT, Appellant, v. PACIFICORP, a Maine Corporation, Dba Pacific Power & Light Company, and Public Utility Commission of Oregon, Respondents.

L87-1282; CA A61887.

Court of Appeals of Oregon.

Argued and Submitted September 26, 1990.

Decided December 5, 1990.

Reconsideration Denied January 30, 1991.

*142 Douglas G. Schaller, Eugene, for appellant. With him, on the briefs, were Arthur C. Johnson, Richard L. Larson and Johnson, Clifton, Larson & Bolin, Eugene, and Donald R. Stark, Barry L. Adamson and Williams, Fredrickson, Stark and Weisensee, Portland.

Charles F. Hinkle, Portland, for respondent Pacificorp. With him, on the brief, were Gregory R. Mowe, Jacklyn M. Bartruff and Stoel Rives Boley Jones & Grey, Portland.

W. Benny Won, Asst. Atty. Gen., Salem, waived appearance, for respondent Public Utility Com'n of Oregon.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

Plaintiff appeals from the judgment awarding costs, disbursements, attorney fees and expert expenses to defendant Pacificorp in this condemnation action.[1]

Defendant raised defenses against the proposed taking. Consequently, the trial court bifurcated the case into a trial to consider those defenses, to be followed, if necessary, by a trial to determine the value of the property. Because defendant prevailed on its defenses, the valuation question was not reached.

Plaintiff first contends that the trial court erred by awarding certain expenses to defendant that it incurred for the services of experts and appraisers in connection with the valuation of the property. ORS 35.335 provides, in relevant part:

"(1) If an action is abandoned by the condemner, the court shall enter judgment in favor of the defendant for costs and disbursements in the action and for reasonable attorney fees and reasonable expenses as determined by the court. "(2) Expenses mean costs of appraisals and fees for experts incurred in preparing and conducting the defense to the action."[2]

Plaintiff asserts that many of the valuation expenses were unreasonable, because the bifurcation of the proceedings made it possible for defendant to defer the services until it was known whether the valuation issue would need to be litigated. Plaintiff does not argue, nor would we agree, that there can be no recovery, as a matter of law, for valuation and appraisal expenses that are incurred in a condemnation case when the issue of value is not ultimately litigated. ORS 35.335(2) provides for recovery *143 of reasonable fees and expenses in connection with the preparation and conduct of the defense. However, plaintiff argues that the greater part of the expenses were not reasonable, because the bifurcation of the proceedings enabled defendant to await the outcome of the first phase before incurring them.

Plaintiff relies on Urban Renewal v. Starr Foods, Inc., 16 Or. App. 475, 519 P.2d 101 (1974), where we affirmed the trial court's disallowance of fees that the condemnee claimed for experts who were in the courtroom during trial, but did not testify. Plaintiff views this situation as analogous. However, contrary to plaintiff's apparent understanding, Starr Foods does not articulate a substantive standard of reasonableness. Rather, our holding was based on the conclusion that "[t]he assessment of reasonable expenses is * * * a question of fact for the trial court" and that the court's finding "was supported by substantial, competent evidence." 16 Or. App. at 479, 519 P.2d 101. Here, too, there was evidence to support findings that all of the challenged expenses were reasonable.

Plaintiff also contends that the court erred by allowing defendant to recover fees for attorneys and experts in connection with the preparation of and presentation on defendant's petition for fees. According to plaintiff, the award of "fees for recovering fees" was not permissible, because the process of recovering fees is not part of the "prosecution of an action." We said in Johnson v. Jeppe, 77 Or. App. 685, 688, 713 P.2d 1090 (1986):

"The enforcement of a judgment and final collection of money due are `legal services related to the prosecution or defense of an action' and may be considered in awarding attorney fees [under ORCP 68]."

See also Marquez v. Meyers, 96 Or. App. 214, 772 P.2d 437 (1989). Similarly, the recovery of attorney fees, costs and expenses to which a prevailing party is entitled by statute is related to the prosecution or defense of the action. As much as the collection of a judgment, the recovery of those items is an entitlement that the statute confers on the party as an incident of the action. The court did not err by awarding the fees for services provided in conjunction with the recovery of the underlying fees.

Plaintiff's remaining arguments require no discussion.

Affirmed.

NOTES

[1] We affirmed the judgment on the merits in Emerald PUD v. Pacificorp, 100 Or. App. 79, 784 P.2d 1112, adhered to, 101 Or. App. 48, 788 P.2d 1034, rev. den. 310 Or. 121, 794 P.2d 793 (1990).

[2] Plaintiff does not question the applicability of the statute and, therefore, we do not address that issue.