Washington County v. Querbach

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FILED: December 30, 2015 IN THE COURT OF APPEALS OF THE STATE OF OREGON WASHINGTON COUNTY, an Oregon political subdivision, Plaintiff-Respondent, v. BRUCE QUERBACH, Defendant-Appellant, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS); HOMESTREET SAVINGS BANK; PACIFIC NORTHWEST TITLE; and JULIA QUERBACH, Defendants. A154903 (Control) ________________________________________________________________ WASHINGTON COUNTY, an Oregon political subdivision, Plaintiff-Appellant, v. BRUCE QUERBACH, Defendant-Respondent, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS); HOMESTREET SAVINGS BANK; PACIFIC NORTHWEST TITLE; and JULIA QUERBACH, Defendants. Washington County Circuit Court C123186CV A155453 D. Charles Bailey, Jr., Judge. Argued and submitted on January 05, 2015. Jacquilyn Saito-Moore, Senior Assistant County Counsel, argued the cause and filed the briefs for Washington County. Neil N. Olsen argued the cause for Bruce Querbach. With him on the briefs were Sean M. Mazorol and Zupancic Rathbone Law Group, P. C. Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge. NAKAMOTO, J. In A154903, affirmed; in A155453, reversed and remanded. 1 NAKAMOTO, J. 2 This case involves consolidated appeals arising out of a condemnation 3 proceeding and concerns the amount of attorney fees and expenses to which defendant is 4 entitled, in light of a settlement offer by plaintiff, Washington County, that defendant did 5 not accept. The settlement procedure at issue in this case is located at ORS 35.300. 6 Under that statute, a condemner may serve an "offer of compromise" on a defendant at 7 any time after filing a condemnation action, up until 10 days before trial. ORS 35.300(1). 8 If the defendant does not accept the plaintiff's offer--as occurred in this case--the offer is 9 withdrawn and may not be given in evidence at trial. ORS 35.300(4). However, if the 10 defendant ultimately fails to obtain a judgment more favorable than the offer--as also 11 occurred in this case--the unaccepted offer severs the defendant's entitlement to attorney 12 fees incurred on and after service of the offer. Id. On appeal, the parties dispute whether 13 the county's offer of compromise--which was unsigned and unfiled when the county 14 initially made it--was effective to sever defendant's entitlement to attorney fees and costs 15 under ORS 35.300(4). We conclude that it was and that the trial court erred in entering a 16 supplemental judgment that failed to give effect to a valid offer of compromise. 17 Accordingly, we affirm as to defendant's appeal and reverse and remand as to the 18 county's appeal. 19 20 21 I. FACTS The relevant facts are procedural and undisputed. Before filing a condemnation action against defendant, Washington County offered defendant $54,000 1 1 as just compensation for taking a portion of defendant's property for a public road. That 2 initial 40-day offer was made pursuant to ORS 35.346, which requires condemning 3 authorities to offer to purchase property before filing a condemnation action. Defendant 4 rejected the county's initial offer, and the county then filed a condemnation action against 5 defendant, alleging just compensation for the taking and damages to the remainder at 6 $54,000. 7 Later, on March 29, 2013, the county sent an "Offer of Compromise" to 8 defendant, offering to settle the matter for $70,000 plus reasonable attorney fees and 9 costs to be later determined by the trial court. That offer was made pursuant to ORS 10 35.300(1), which, as noted, authorizes condemning authorities to pursue settlement by 11 serving an "offer of compromise" on the defendant any time after filing a condemnation 12 action, up until 10 days before trial. The "Offer of Compromise" was unsigned when the 13 county sent it to defendant, and the county did not file the offer with the trial court at that 14 time. Defendant rejected the offer. 15 The parties proceeded to trial in May 2013, and the jury returned a verdict 16 for just compensation in the amount of $65,375--$4,625 less than the county's settlement 17 offer. The court later entered a general judgment in favor of defendant, awarding just 18 compensation in that amount, plus reasonable costs and disbursements, attorney fees, and 19 expenses, to be stated in a supplemental judgment. 20 21 After the jury's verdict, the county filed the unsigned "Offer of Compromise" with the trial court, with a certification from the county's attorney that she 2 1 had served that document on defendant's attorney on March 29, approximately two 2 months earlier. Defendant demanded that the county voluntarily withdraw the offer, on 3 the theory that the offer was not a valid offer of compromise under ORS 35.300 because 4 it was unsigned and untimely filed. The county refused to withdraw the offer, and 5 defendant moved to strike the offer from the record on those same theories. The county 6 filed a response to defendant's motion to strike, arguing that its settlement offer was a 7 valid offer of compromise, even though it was unsigned when sent to defendant and not 8 filed until after trial. 9 While defendant's motion to strike was pending, defendant filed a statement 10 of attorney fees, expenses, and costs, pursuant to ORCP 68, seeking reimbursement for 11 $183,634.50--all of his attorney fees and costs, irrespective of the county's settlement 12 offer.1 The county filed objections, addressing both its offer of compromise and specific 13 elements of defendant's statement. 14 In support of the objections based on the offer of compromise, the county's 15 attorney filed a declaration stating, in part, that the county "maintains its position that the 16 Offer of Compromise served on Defendant on March 29, 2013 severs Defendant's 17 entitlement to reasonable attorney fees, expenses, costs and disbursements pursuant to 18 ORS 35.300." As an exhibit to the declaration, the county attached its earlier response to 19 defendant's motion to strike, in which the county had argued that its settlement offer was 1 Defendant requested $137,294.00 for attorney fees, $36,180.50 for litigation expenses, $160.00 for costs and disbursements, and $10,000.00 for post-judgment work. 3 1 a valid offer of compromise under ORS 35.300. The county's overarching objection to 2 the particulars of defendant's statement was that defendant had requested "unreasonable" 3 attorney fees. Specifically, the county argued that defendant's attorneys had billed 4 excessive hours, in the amount of at least $36,302.50. 5 The trial court heard oral argument concerning both the motion to strike 6 and the request for attorney fees, expenses, and costs on the same day. First, the trial 7 court orally denied the motion to strike, concluding that the county's settlement offer was 8 a valid offer of compromise under ORS 35.300. The trial court rejected defendant's 9 argument that, because the offer was unsigned, it was a valid settlement offer that 10 defendant was free to accept or reject, but it was not a valid "offer of compromise" with 11 specific legal consequences under ORS 35.300. The trial court also rejected defendant's 12 argument that ORCP 9 required the county to file the offer at the time that it served the 13 offer on defendant. 14 Next, the trial court addressed defendant's request for attorney fees. 15 Defendant argued that his attorneys' hours were not excessive and that, under ORCP 68 16 A, attorney fees associated with depositions are recoverable, even though costs are not. 17 Then, defendant again addressed the offer of compromise, contending that the county 18 "did not object with the required specificity as to the ORS 35.300 offer of compromise 19 somehow diminishing our right to fees." After the county responded, the court took the 20 matter under advisement. 21 In a letter opinion addressing both defendant's motion to strike and 4 1 defendant's request for attorney fees, the court made findings of fact concerning the offer 2 of compromise: (1) "Defendant's rejection of Washington County's Offer of Compromise 3 had nothing to do with it not being a signed offer"; (2) "At no time prior to the Offer of 4 Compromise being filed with the court did the defendant put the County on notice that 5 the Offer was unsigned"; and (3) "When Washington County filed the Offer of 6 Compromise with the court, though the Offer was still unsigned, the certificate of service 7 was signed by" the county's attorney. The court concluded that ORCP 17, the rule upon 8 which defendant had relied to support his signing theory, applies only when documents 9 are sent to and filed with the court. Because the county had filed an unsigned offer of 10 compromise but a signed certificate of service with the court, the court concluded that 11 "[a] reasonable remedy would be for County Counsel to send a signed copy of the Offer 12 to the court within 5 days of receiving this decision." The court also concluded that it 13 would be "unreasonable to strike the Offer because it was unsigned when the defendant 14 never put County Counsel on notice of the Offer being unsigned or requested a signed 15 offer." Thus, the trial court explained, it was conditionally denying defendant's motion to 16 strike the offer of compromise, contingent upon the county filing a signed copy of the 17 offer of compromise in accordance with its ruling. 18 Although the court denied defendant's motion to strike the offer of 19 compromise, the court did not cut off defendant's attorney fees as of the date the county 20 served its offer to pay defendant $70,000. Instead, the court stated that it was "awarding 21 what it believes to be reasonable attorney fees and costs" and made findings pertinent to 5 1 an attorney fee award under ORS 35.346(7). As relevant to the trial court's action here, 2 ORS 35.346(7)(a) entitles a property owner to "reasonable attorney fees and reasonable 3 expenses" after trial when "the amount of just compensation assessed by the verdict in the 4 trial exceeds the highest written offer in settlement submitted by condemner before the 5 filing of the action." The trial court found that the county's highest prefiling settlement 6 offer was $54,000, which was less than the just compensation determined by the jury, and 7 awarded defendant, pursuant to ORS 35.346(7) and without further elaboration, 8 $93,864.50 in attorney fees, $36,077.10 in costs, and $1,124.72 in interest. 9 Within five days of receiving the trial court's letter opinion, the county filed 10 a signed copy of the offer of compromise. The county then moved for reconsideration of 11 the fee award. The county argued that, because the jury verdict was for less than the 12 county's offer of compromise, which the court had upheld as valid, ORS 35.300(4) 13 limited the attorney fee award to fees and expenses incurred before March 29, 2013, the 14 date that the county had served the offer on defendant. The trial court denied the county's 15 motion for reconsideration, stating that the county "did not argue this point [at] the 16 hearing or through any of its responses" and that its request "is now untimely." The court 17 entered a supplemental judgment denying defendant's motion to strike and awarding 18 defendant fees and expenses pursuant to ORS 35.346 and ORCP 68. 19 20 21 II. DISCUSSION Both parties timely appealed the supplemental judgment and various orders concerning the trial court's calculation of attorney fees. Ultimately, however, only the 6 1 supplemental judgment--which contained the trial court's ruling on defendant's motion to 2 strike and the attorney fee award--is at issue on appeal. The parties' appeals have been 3 consolidated.2 4 Defendant raises two assignments of error: first, that the trial court erred in 5 denying his motion to strike the county's offer of compromise from the record and, 6 second, that it erred to the extent that it "reduced the award of attorneys' fees, costs, and 7 expenses in the Supplemental Judgment and Money Award as a result of the Offer of 8 Compromise." The county also raises two assignments of error: first, that the trial court 9 "erred in failing to give effect to a valid offer of compromise made pursuant to ORS 10 35.300(4) when it awarded attorney fees and costs incurred past the date the offer of 11 compromise was served on defendant" and, second, that the court "erred in determining it 12 had authority to impose reasonable attorney fees and costs absent a basis in statute or 13 rule." 14 A. Defendant's Motion to Strike the Offer of Compromise 15 Defendant's challenge to the denial of his motion to strike brings to the fore 16 the parties' fundamental dispute: whether an unsigned settlement offer that is not filed at 17 the time the condemner serves it and that complies with the express requirements of ORS 18 35.300 is a valid offer of compromise effective to sever a defendant's right to attorney 19 fees under ORS 35.300(4). That question, which requires interpretation of a statute and 2 Defendant's appeal is A154903. Defendant also appealed the general judgment, but does not raise any assignments of error challenging it. The county's appeal is A155453. 7 1 the Oregon Rules of Civil Procedure, is central to our review of all of the trial court's 2 rulings challenged on appeal and is a question of law that we review for legal error. City 3 of Harrisburg v. Leigh, 254 Or App 558, 568, 295 P3d 138 (2013) (although we 4 generally review an attorney fee award for abuse of discretion, when a trial court bases its 5 decision on a legal conclusion, the standard of review is for error of law). 6 In interpreting a statute, we examine the text and context of the statute and, 7 to the extent that it is helpful to our analysis, legislative history. State v. Gaines, 346 Or 8 160, 171-72, 206 P3d 1042 (2009). Likewise, "[w]e construe the rules of civil procedure 9 using the same analytical method that applies to statutory construction." Rains v. Stayton 10 Builders Mart, Inc., 258 Or App 652, 657-58, 310 P3d 1195 (2013). Unless the 11 legislature subsequently amends a rule promulgated by the Council on Court Procedures 12 (CCP), which promulgates the rules, "[o]ur task in interpreting a rule of civil procedure is 13 to discern the intent of the" CCP. Id. at 658. 14 1. ORS 35.300 15 The special procedures governing condemnation actions are located in ORS 16 chapter 35. ORS 35.375 (providing that "any action for the condemnation of property 17 under the power of eminent domain shall be conducted according to this chapter"). At 18 issue in this case, ORS 35.300(1) addresses the procedural requirements for a condemner 19 to make, and a property owner to accept, an "offer of compromise" after the 20 condemnation action is filed: 21 22 "After the filing of a condemnation action, a condemner may serve an offer of compromise on the defendant in the action. An offer of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 compromise must be served on the defendant not later than 10 days before the trial of the action. The offer of compromise must identify the amount offered as just compensation for the property and as compensable damages to remaining property of the defendant. The offer of compromise must also indicate whether the offer includes any amount for costs and disbursements, attorney fees and expenses and, if so, the amounts included for costs and disbursements, attorney fees and expenses. If the defendant accepts the amount offered as just compensation for the property and as compensable damages to remaining property of the defendant, the defendant shall file with the court an acceptance signed by the defendant or the defendant's attorney. The acceptance must be filed not more than three days after the time the offer was served on the defendant. A copy of the offer must be attached to the acceptance." 14 Notably, ORS 35.300(1) plainly contains no signature requirement for the offer (but does 15 require a signature for an acceptance of an offer of compromise) and identifies specific 16 procedures and deadlines to file an acceptance, not an unaccepted offer. 17 If the condemner makes an offer of compromise and the defendant accepts 18 it within the time allowed by the statute, the parties, in essence, have formed a settlement 19 contract. Cf. Miller v. American Family Mutual Ins. Co., 262 Or App 730, 737, 330 P3d 20 631 (2014) ("An offer of judgment under ORCP 54 E is an agreement between the parties 21 and is 'in the nature of a contract, approved by the court.'" (Quoting Nieminen v. Pitzer, 22 281 Or 53, 57, 573 P2d 1227 (1978).)). If, however, the defendant does not accept the 23 offer of compromise, under subsection (4) of the statute, the offer is deemed withdrawn 24 and is immaterial, except as to attorney fees: 25 26 27 28 "If an offer of compromise is not accepted within the time allowed under subsection (1) of this section, the offer is withdrawn and may not be given in evidence at trial. If the defendant fails to obtain a judgment more favorable than the offer: 9 1 2 3 "(a) The defendant may not recover prevailing party fees or costs and disbursements, attorney fees and expenses that were incurred on and after service of the offer; 4 5 6 "(b) Unless the parties agree otherwise, the court shall give judgment to the defendant for costs and disbursements, attorney fees and expenses that were incurred by the defendant before service of the offer; and 7 8 9 "(c) The court shall give judgment to the condemner for the condemner's costs and disbursements, other than prevailing party fees, incurred by the condemner on and after service of the offer." 10 ORS 35.300(4). Like subsection (1), ORS 35.300(4) does not contain a filing 11 requirement for an offer of compromise that the defendant has not accepted. 12 2. Whether the county was required to file its offer of compromise 13 Recognizing that the text of ORS 35.300 does not support his position, 14 defendant argues that the court should have granted his motion to strike the county's offer 15 of compromise because the Oregon Rules of Civil Procedure impose additional filing and 16 signature requirements, and that a condemner's noncompliance with those procedures 17 renders an otherwise valid offer of compromise ineffective to cut off attorney fees. We 18 disagree with defendant's view. 19 Defendant's filing theory is that the offer of compromise was procedurally 20 defective because the county did not file it concurrently with serving it on defendant, as 21 required by ORCP 9. Defendant argues that the general filing requirements of ORCP 9 22 also apply to offers of compromise made pursuant to ORS 35.300. That rule provides 23 that except "as otherwise provided in these rules, * * * every written request, notice, 24 appearance, demand, offer of judgment, designation of record on appeal, and similar 10 1 document shall be served upon each of the parties." ORCP 9 A (emphasis added). The 2 filing requirement appears in ORCP 9 C, which requires that, except "as provided by 3 section D of this rule, all papers required to be served upon a party by section A of this 4 rule shall be filed with the court within a reasonable time after service." Rule 9 D 5 exempts "[o]ffers of compromise made pursuant to Rule 54 E" from the ORCP 9 C filing 6 requirement and provides that they "shall not be filed with the court except as provided in 7 Rule 54 E(3)." Therefore, defendant argues, an offer of compromise made pursuant to 8 ORS 35.300 must be filed "within a reasonable time after service" according to ORCP 9 9 C, because it is a "similar document" under ORCP 9 A, but it is not an ORCP 54 E "offer 10 of compromise" exempt under ORCP 9 D. 11 Defendant bolsters his reading of ORCP 9 by relying on its evolution after 12 our decision in Wilmoth v. Ann Sacks Tile and Stone, Inc., 224 Or App 315, 197 P3d 567 13 (2008), rev den, 346 Or 185 (2009), which concerned whether an offer of compromise 14 made under ORCP 54 E had to be filed with the court. In Wilmoth, we construed the 15 relationship between ORCP 54 E and a prior version of ORCP 9, which did not contain 16 the ORCP 9 D filing exemption for ORCP 54 E offers of compromise. Id. at 334-36. We 17 held, under the rules then in effect, that 18 19 20 21 "[n]either ORCP 54 E nor ORCP 9 D creates an exception to the filing requirement imposed by ORCP 9 A and C for 'every' offer of judgment. Therefore, a party who makes and serves an offer of judgment also must file it within a reasonable time." 22 Id. at 336. We also rejected an argument that, because ORCP 54 E expressly required 23 only a party accepting an ORCP 54 E offer of judgment to file the offer, by negative 11 1 implication, a party making an ORCP 54 E offer of judgment was not required to file the 2 offer under ORCP 9. Id. In response to our holding in Wilmoth, the CCP amended both 3 ORCP 9 and ORCP 54 E to clarify that only a party accepting an ORCP 54 E offer of 4 judgment must file the accepted offer under ORCP 9. See Minutes, Council on Court 5 Procedures, Dec 13, 2008, 6 ("[T]he promulgated amendment [to ORCP 54 E] should, 6 contrary to Wilmoth, prevent Rule 9 C from making an unfiled ORCP 54 E offer 7 ineffective.");3 ORCP 9 D amended by CCP Dec 2010 (amended to exempt Rule 54 E 3 ORCP 54 E now provides: "(E)(1) Except as provided in ORS 17.065 through 17.085 [regarding settlements concerning injured workers], any party against whom a claim is asserted may, at any time up to 14 days prior to trial, serve upon any other party asserting the claim an offer to allow judgment to be entered against the party making the offer for the sum, or the property, or to the effect therein specified. The offer shall not be filed with the court clerk or provided to any assigned judge, except as set forth in subsections E(2) and E(3) below. "E(2) If the party asserting the claim accepts the offer, the party asserting the claim or party's attorney shall endorse such acceptance thereon and file the same with the clerk before trial, and within seven days from the time the offer was served upon such party asserting the claim; and thereupon judgment shall be given accordingly as a stipulated judgment. If the offer does not state that it includes costs and disbursements or attorney fees, the party asserting the claim shall submit any claim for costs and disbursements or attorney fees to the court as provided in Rule 68. "E(3) If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence at trial and may be filed with the court only after the case has been adjudicated on the merits and only if the party asserting the claim fails to obtain a judgment more favorable than the offer to allow judgment. In such a case, the party asserting the claim shall not recover costs, prevailing party fees, disbursements, or attorney fees incurred after the date of the offer, but the party against whom the claim was asserted shall recover of the party 12 1 2 offers from the filing requirement). The legislature did not further amend those rules. Defendant views those amendments narrowly. He notes that the 3 amendment to ORCP 9 D exempts only ORCP 54 E "offers of judgment" but not "similar 4 documents" from the ORCP 9 filing requirement. Therefore, defendant contends, the 5 CCP intended to correct our decision in Wilmoth specifically as to ORCP 54 E offers of 6 judgment, but to ratify Wilmoth to the extent that it applies to "similar document[s]." 7 The county does not urge a different view of ORCP 9 and its application to 8 offers of compromise under ORS 35.300. Rather, the county asserts that an ORS 35.300 9 offer of compromise is an ORCP 54 E offer of judgment exempt from filing under ORCP 10 9, notwithstanding the fact that ORCP 54 E, by its terms, applies to offers made by 11 defendants, not plaintiffs. 12 We disagree with both parties' arguments concerning how the legislature 13 intended offers of compromise under ORS 35.300 to be made and to operate, a question 14 that is properly before us. See State v. Walker, 192 Or App 535, 542, 86 P3d 690, rev 15 den, 337 Or 327 (2004) (when a party "plainly put in issue the proper construction of the 16 statute," appellate court had an "obligation" to correctly construe the statute, "regardless 17 of the parties' arguments"). We conclude instead that an ORS 35.300 "offer of 18 compromise" is governed by the procedures in ORS chapter 35 and not the filing 19 requirements in ORCP 9 C. asserting the claim costs and disbursements, not including prevailing party fees, from the time of the service of the offer." 13 1 Although condemnation actions are special actions generally subject to the 2 Oregon Rules of Civil Procedure, the rules do not apply "where a different procedure is 3 specified by statute or rule." ORCP 1 A. In ORS chapter 35, the legislature has specified 4 the procedures to make, accept, and file settlement offers in condemnation proceedings. 5 The procedures governing condemnation actions have coexisted with generally 6 applicable civil procedure rules almost since Oregon's statehood. See generally Jane A. 7 Gearhart, Condemnation Procedures in Oregon, 46 Or L Rev 125, 127-30 (1967) (tracing 8 legislative history of early condemnation procedures in Oregon). In 1862, the legislature 9 enacted procedures governing the contents of the complaint and answer, trial practice, 10 judgment entry, and appeals in condemnation actions by quasi-public corporations 11 organized to improve railways, roads, canals, and bridges. General Laws of Oregon, ch 12 VIII, title III, §§ 40-52, p 670-71 (Deady 1845-1864). Those 1862 procedures evolved 13 into the condemnation procedures now codified at ORS chapter 35. See Gearhart, 46 Or 14 L Rev at 127. Also in 1862, the legislature separately enacted a general code of civil 15 procedure. General Laws of Oregon, Civ Code (Deady 1845-1864). The legislature 16 specified in the condemnation statutes that a condemnation action was to be "commenced 17 and proceeded in to final determination in the same manner as an action at law, except as 18 * * * otherwise specially provided" in the condemnation procedures. General Laws of 19 Oregon, ch VIII, title III, § 41, p 670 (Deady 1845-1864). 20 Since 1862, specific condemnation settlement procedures and cost-shifting 21 statutes have coexisted with parallel rules of civil procedure that are generally applicable 14 1 to civil actions. The 1862 condemnation laws contained an early version of the 2 settlement procedure that now exists at ORS 35.346, which requires condemners to offer 3 to purchase property before filing a condemnation action. See General Laws of Oregon, 4 ch VIII, title III, §§ 40, 49, p 670-71 (Deady 1845-1864). Like ORS 35.346, that 1862 5 statute allowed the defendant to recover "costs and disbursements" from the condemner, 6 but altered that award if the defendant fruitlessly pursued trial after choosing not to settle: 7 8 9 10 "[I]f it appear that such corporation tendered the defendant, before commencing the action, an amount equal to, or greater than that assessed by the jury, in such case the corporation shall recover its costs and disbursements off the defendant." 11 Id. § 49, p 671. That law evolved to encompass attorney fees and is now codified as part 12 of the settlement procedure at ORS 35.346. Parallel to that cost-shifting law, the 1862 13 civil procedure code contained the generally applicable procedure to make and accept an 14 "offer to allow judgment," which became ORCP 54 E: 15 16 17 18 19 20 21 22 23 24 25 26 "The defendant may, at any time before trial, serve upon the plaintiff an offer to allow judgment or decree to be given against him for the sum, or the property, or to the effect, therein specified. If the plaintiff accept the offer, he shall by himself or attorney endorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon him ; and thereupon judgment or decree shall be given accordingly as in case of a confession. If the offer be not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial ; and if the plaintiff fail to obtain a more favorable judgment or decree, he shall not recover costs, but the defendant shall recover of him costs and disbursements from the time of the service of the offer." 27 General Laws of Oregon, Civ Code, ch VI, title I, § 511, p 276 (Deady 1845-1864) 28 (footnotes omitted); see Council on Court Procedures Comment to ORCP 54, reprinted in 15 1 Fredric R. Merrill, Oregon Rules of Civil Procedure: A Handbook 110 (1981) ("Section 2 54 E is based on ORS 17.055," the statute where the 1862 offer of judgment law was 3 ultimately codified.). 4 The Supreme Court construed the relationship between the condemnation 5 settlement procedure and the general offer of judgment rule in Oregon Cent. R. Co. v. 6 Wait., 3 Or 428 (1869). In that case, the property owner asserted that the lower court 7 erred by awarding costs for the condemner, when the condemner failed to make a 8 settlement offer before commencing the action. Id. at 434-35. As a backup argument, 9 the condemner argued that the general civil rule governing offers of judgment supported 10 the cost award. On appeal, the Supreme Court held for the property owner, concluding 11 that the general offer of judgment rule was not applicable to condemnation proceedings 12 because the specific provisions related to condemnation procedures "must govern." Id. at 13 435. Thus, the court recognized that the statutory settlement procedures related to 14 condemnation actions were distinct from and superseded generally applicable parallel 15 procedures. 16 Legislative history indicates that the legislature intended the offer of 17 compromise settlement procedures at ORS 35.300 to supplement the longstanding 18 prefiling settlement procedures at ORS 35.346. See generally Audio Recording, Senate 19 Committee on Judiciary, SB 794, Apr 16, 2009, at 01:34 (statement of Harry Auerbach, 20 Chief Deputy City Attorney, City of Portland), 21 oregon.granicus.com/MediaPlayer.php?clip_id=5432 (accessed Dec 16, 2015) 16 1 (explaining, on behalf of a condemning authority championing the offer of compromise 2 procedure, the modern history of settlement procedures in ORS chapter 35). Given that 3 historical context, we conclude, in accordance with ORCP 1 A, that the condemnation 4 procedure concerning offers of compromise and their effect on attorney fees and costs is 5 different from and supersedes the general civil procedure requirements related to 6 settlement offers under ORCP 9 and ORCP 54. 7 8 Filing requirements for offers of compromise are explicitly identified in ORS 35.300. "If the defendant accepts" the offer of compromise, 9 10 11 12 "the defendant shall file with the court an acceptance signed by the defendant or the defendant's attorney. The acceptance must be filed not more than three days after the time the offer was served on the defendant. A copy of the offer must be attached to the acceptance." 13 ORS 35.300(1). Contrary to defendant's theory that the county was required to file its 14 initial offer, ORS 35.300 does not direct condemning authorities to file the initial offer. 15 In addition, the specific three-day filing timeline provided in ORS 35.300(1) conflicts 16 with the timeline in ORCP 9 C, which requires filing "within a reasonable time after 17 service," and, therefore, the more specific timeline controls. See ORS 174.020(2) 18 ("When a general and particular provision are inconsistent, the latter is paramount to the 19 former so that a particular intent controls a general intent that is inconsistent with the 20 particular intent."). 21 Finally, attempting to give effect to both ORS 35.300 and ORCP 9 would 22 be illogical, given the pro-settlement structure of ORS 35.300. At the time that a 23 condemning authority makes an offer of compromise, whether the trial court will even 17 1 need to see that document is unknown. Unaccepted offers of compromise are not 2 admissible as evidence at trial and do not ultimately affect attorney fees if the defendant 3 receives a higher jury verdict. ORS 35.300(4). And, requiring a condemner to file every 4 settlement offer would chill settlement efforts, which is directly contrary to the pro- 5 settlement policy underlying ORS chapter 35. In sum, the statutory scheme of ORS 6 chapter 35--which contains condemnation settlement procedures that have superseded 7 generally applicable settlement procedures for more than a century and a half--and the 8 conflicts between ORCP 9 and ORS 35.300 lead us to conclude that ORS 35.300 contains 9 the exclusive filing requirements for pretrial offers of compromise in condemnation 10 actions. 11 3. Whether the county was required to serve a signed offer 12 We next turn to defendant's theory that ORCP 17 required the county to 13 sign the offer of compromise before serving it on him. Under ORCP 17 A, "[e]very 14 pleading, motion, and other document of a party represented by an attorney shall be 15 signed by at least one attorney of record who is an active member of the Oregon State 16 Bar." The catchall in that rule, "[e]very * * * other document of a party represented by 17 an attorney," cannot extend to literally all "other document[s] of a party." The general 18 purpose of ORCP 17 lends some clarification to the scope of the rule. 19 Rule 17 is primarily a certification rule, which exists to prevent parties 20 from presenting fraudulent or frivolous claims. See Council on Court Procedures, Staff 21 Comment to ORCP 17, reprinted in Merrill, Oregon Rules of Civil Procedure: A 18 1 Handbook at 35 ("This [rule] replaces the general verification requirements of ORS 2 16.070, 16.080, and 30.350 with a rule requiring only signature but specifying that such 3 signature certifies truthfulness and merit."). That purpose is evident in ORCP 17 C and 4 D, which identify the purposes of certification and sanctions for violating the certification 5 rule. In short, the rule concerns "certification[s] to the court." ORCP 17 C(1) (emphasis 6 added). Thus, the ORCP 17 A signature requirement applies to documents that will be 7 filed with the court. 8 In contrast to ORCP 17 A, ORS 35.300(1) imposes no signature 9 requirement on offers of compromise at the time that they are made and, as we have 10 concluded, does not require that those offers be filed with the court. The statute does 11 require the defendant to sign an acceptance and to file the acceptance with the court, with 12 a copy of the offer attached. ORS 35.300(1). Had the legislature intended ORCP 17 A to 13 apply to all documents associated with ORS 35.300(1), it would not have needed to 14 specify that acceptances must be signed. 15 Further, given the certification purpose of ORCP 17, we conclude that the 16 rule does not apply to an ORS 35.300 offer of compromise at the time that a condemner 17 serves it on a defendant. As noted, such an offer of compromise may never be filed with 18 the court and, therefore, it may never be something that a condemner is required to 19 certify. Applying ORCP 17 A to ORS 35.300 offers of compromise would also be 20 contrary to the settlement scheme laid out in ORS chapter 35. The settlement procedures 21 within ORS chapter 35 reflect legislative intent to encourage settlement in a context that 19 1 is fair to both the condemner and the property owner. If a condemning authority initially 2 low-balls a settlement offer and the property owner ultimately obtains a higher jury 3 award, the property owner is entitled to all of his or her attorney fees. ORS 35.346(7). 4 And, if a property owner rejects a pretrial settlement offer and ultimately obtains a less 5 favorable jury award, the property owner cannot receive attorney fees incurred because of 6 his or her decision to proceed to trial. ORS 35.300(4). 7 Overall, ORS chapter 35 is concerned with whether a settlement offer was 8 made at all, and defendant has articulated no principle of law that settlement offers must 9 be signed to be valid offers. On the contrary, general contract principles direct that 10 whether a communication is an offer of settlement depends on whether it objectively 11 manifests the offeror's intent to be bound. See Wall Street Management & Capital, Inc. v. 12 Crites, 274 Or App 347, 358, 360 P3d 673 (2015) (whether a contract has been formed 13 depends on whether the parties have manifested mutual assent to do so); ODOT v. Delta 14 Inn, Inc., 168 Or App 50, 59, 3 P3d 180 (2000), rev den, 331 Or 583 (2001) ("Settlement 15 agreements are contracts and, as such, they implicate general principles of contract law." 16 (Internal quotation marks omitted.)). Whether a party manifests intent to be bound to a 17 contract is a question of fact. Wall Street Management & Capital, Inc., 274 Or App at 18 358. 19 Here, the trial court determined that the county had made an offer of 20 compromise and rejected defendant's contention that he did not know that he could accept 21 the unsigned offer of compromise. For good reason, defendant does not challenge those 20 1 determinations on appeal. In fact, defendant expressly argued to the trial court that he 2 had treated the unsigned offer of compromise as a valid settlement offer and had rejected 3 it. That position was consistent with his prior actions: Defendant had emailed the county 4 upon receiving the offer and stated, "We will not settle the matter at $70,000," and 5 concurrently made a counteroffer. 6 Defendant's remaining argument touching on the lack of a signed offer of 7 compromise is that, under ORCP 17 B, the offer should have been stricken from the 8 record because it was still unsigned when the county filed it after trial on May 23. Under 9 ORCP 17 B, "[i]f a pleading, motion or other paper is not signed, it shall be stricken 10 unless it is signed promptly after the omission is called to the attention of the pleader or 11 movant." For reasons similar to those already identified, we also reject that argument. 12 As discussed, ORCP 17 applies to representations to the court. An offer of 13 compromise, filed in this context, is not a representation to the court. Nothing in ORS 14 35.300 requires that a condemner file an unaccepted offer of compromise separately, after 15 the defendant receives a lower jury award, as the county did here. In other words, the 16 county chose to file the offer of compromise in anticipation of defendant's request for 17 attorney fees, but the statute does not foreclose the county from having filed the offer of 18 compromise as an exhibit or in some other form. In this context, the offer of compromise 19 functioned as evidence relevant to defendant's request for attorney fees; it did not 20 function as a representation to the court falling within ORCP 17. Therefore, ORCP 17 A 21 did not require a signature at the time that the county filed the offer of compromise, and 21 1 ORCP 17 B did not require the court to strike the unsigned offer of compromise. 2 Having decided the central legal issues raised on appeal, we return to 3 defendant's assignment of error to the trial court's denial of his motion to strike the offer 4 of compromise. That ruling was based on the trial court's legal conclusions that ORCP 5 17 and ORCP 9 do not apply to an offer of compromise at the time the offer is made and 6 that ORCP 17 did not apply to the offer of compromise at the time that it was filed. 7 Because we have concluded that ORCP 17 and ORCP 9 do not apply to an offer of 8 compromise, the trial court did not err in denying defendant's motion to strike. 9 B. 10 The Award of Attorney Fees, Expenses, and Costs Defendant and the county both argue that the trial court erred in its award 11 of attorney fees in the supplemental judgment. Defendant argues that the trial court erred 12 to the extent that it reduced his attorney fees as a result of the offer of compromise. The 13 county argues that the trial court erred to the extent that it did not reduce attorney fees as 14 a result of the offer of compromise. We reject defendant's argument and agree with the 15 county, because we have already concluded that the offer of compromise was valid and 16 because it appears that the trial court awarded some attorney fees incurred after the offer 17 of compromise was served. 18 Before discussing the merits, we address defendant's contention that we 19 should not review the county's assignment of error concerning the attorney fee award 20 because, in defendant's view, the county failed to make "specific" written objections 22 1 identifying the offer of compromise, as required by ORCP 68 C(4)(b).4 Defendant 2 characterizes the county's alleged failure to make specific objections as a preservation 3 problem. It is not. The county's present argument that the offer of compromise severed 4 attorney fees is preserved, given that both the trial court and defendant understood that 5 the county's position was that its offer of compromise cut off defendant's entitlement to 6 fees. The trial court considered the parties' arguments concerning the effectiveness of the 7 offer of compromise in the same hearing as the court considered the attorney fee award. 8 And, defendant himself highlighted the relationship between the offer of compromise and 9 the fee award to the trial court, when he argued that the county had not appropriately 10 objected on that basis. Therefore, the trial court had an opportunity to avoid legal error 11 by giving effect to the offer of compromise. See Peeples v. Lampert, 345 Or 209, 219- 12 20, 191 P3d 637 (2008) (identifying policy rationales behind preservation doctrine). 13 The county's alleged failure to object with the requisite specificity is more 4 ORCP 68 C(4)(b) provides: "A party may object to a statement seeking attorney fees or costs and disbursements or any part thereof by written objections to the statement. The objection and supporting documents, if any, shall be served within 14 days after service on the objecting party of a copy of the statement. The objection shall be specific and may be founded in law or in fact and shall be deemed controverted without further pleading. The objecting party may present affidavits, declarations, and other evidence relevant to any factual issue including any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements." 23 1 appropriately considered to be a waiver problem. See ORCP 68 C(2)(d).5 However, we 2 conclude that the county's objection met the specificity required by ORCP 68 C(4)(b). 3 Although the county's express objections concerned the "reasonableness" of defendant's 4 attorneys' billing, the county stated, in a supporting declaration, that it was still 5 maintaining its position that the offer of compromise was valid and therefore cut off 6 defendant's entitlement to fees. The county also attached a copy of its response to 7 defendant's motion to strike, which addressed the validity of the offer of compromise. A 8 trial court may look to accompanying affidavits and declarations in its ruling on attorney 9 fees. See ORCP 68 C(4)(e). And, the trial court considered both the motion to strike and 10 the attorney fee award at the same hearing, after a verdict had been returned. At that 11 point, there would have been no reason for defendant to move to strike the offer of 12 compromise, unless it were relevant to attorney fees. Under the circumstances, the 13 county's objection was adequately specific. 14 On the merits of the parties' challenges to the award of fees, expenses, and 15 costs, the parties agree that, when a valid offer of compromise is not accepted, the effect 16 of ORS 35.300(4) is clear: "If the defendant fails to obtain a judgment more favorable 17 than the offer * * * [t]he defendant may not recover prevailing party fees or costs and 18 disbursements, attorney fees and expenses that were incurred on and after service of the 19 offer." That provision cuts off the attorney fees and expenses to which the defendant 5 ORCP 68 C(2)(d) provides, in part, "Any objection to the form or specificity of the allegation of the facts, statute, or rule that provides a basis for the award of fees shall be waived if not alleged prior to trial or hearing." 24 1 would normally be entitled pursuant to ORS 35.346(7), which provides that, "[i]f a trial is 2 held * * *, the court * * * shall award the defendant costs and disbursements including 3 reasonable attorney fees and reasonable expenses" in two instances "and no other." 4 (Emphasis added.) Those two instances are (1) the verdict exceeds the highest prefiling 5 settlement offer that the condemner made pursuant to ORS 35.346(1) and (2) the initial 6 prefiling offer made by the condemner was not in good faith. ORS 35.346(7)(a) - (b). 7 Thus, when an unaccepted offer of compromise is at issue, an award of attorney fees, 8 costs, and expenses has two steps. First, the trial court must determine that the defendant 9 is entitled to attorney fees, costs, and expenses pursuant to ORS 35.346(7)(a) or (b). 10 Second, the trial court must determine whether to give effect to the offer of compromise 11 to cut off the award, based upon whether the offer of compromise was higher or lower 12 than the verdict. ORS 35.300(4)(a) - (b); see also Audio Recording, Senate Committee 13 on Judiciary, SB 794, April 16, 2009, at 08:26 (statement of Harry Auerbach, Chief 14 Deputy City Attorney, City of Portland), 15 oregon.granicus.com/MediaPlayer.php?clip_id=5432 (accessed Dec 16, 2015) (testifying 16 that ORS 35.300(4) was "designed to clarify that when the government makes an offer of 17 compromise during the course of the litigation, the owner is entitled to recover costs, 18 expenses, and attorney[ ] fees incurred as of the date of the offer * * * whether the owner 19 accepts the offer or whether the owner rejects the offer, unless, at the end of the day, the 20 owner's result is lower than that initial offer (presuit offer), [which] means [that the 21 owner does not] get any costs or fees at all"). 25 1 Here, the trial court properly found that defendant was entitled to attorney 2 fees pursuant to ORS 35.346(7)(a), because, as the trial court found, the verdict exceeded 3 the county's highest presuit filing offer. The parties dispute, however, whether the trial 4 court gave effect to the offer of compromise. Neither party has provided us with a sum 5 reflecting which of defendant's attorney fees and expenses were incurred before the offer 6 of compromise was served on March 29, 2013. However, a review of defendant's 7 attorneys' billing statements, included in the trial court record, demonstrates that the trial 8 court's $96,864.50 fee award necessarily included fees incurred after March 29, 2013. 9 Likewise, the $36,077.10 award for expenses included expenses incurred after March 29, 10 2013. Therefore, the trial court erred by awarding attorney fees, expenses, and costs that 11 defendant incurred upon and after service of the offer of compromise on March 29, 2013. 12 We remand for the trial court to correct the supplemental judgment to account for the 13 offer of compromise under ORS 35.300(4). 14 Finally, the county challenges the attorney fee award to the extent that the 15 court "determin[ed] it had authority to impose reasonable attorney fees and costs absent a 16 basis in statute or rule." If the county is arguing that the court lacked authority to award 17 defendant any fees, the county did not preserve that argument. However, the county 18 appears to be reasserting its point that defendant was not entitled to an award of fees and 19 costs incurred after the county served its offer of compromise. If so, we agree. 20 21 In summary, the procedures in ORS chapter 35 governed in the condemnation proceeding. Although the county served defendant with an unsigned offer 26 1 of compromise, it was effective to cut off defendant's claimed attorney fees under ORS 2 35.300(4). And, the county had no obligation to file its offer, which defendant rejected, 3 with the court before trial. Therefore, the trial court erred in entering a supplemental 4 judgment awarding attorney fees and expenses that failed to give effect to the valid offer 5 of compromise. 6 In A154903, affirmed; in A155453, reversed and remanded. 27

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