Sustainable Investments LLC v. Dept. of Rev.
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IN THE OREGON TAX COURT REGULAR DIVISION Property Tax SUSTAINABLE INVESTMENTS, LLC, Plaintiff, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant, and MARION COUNTY ASSESSOR, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) TC 5213 ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS This matter is before the court on the motion of Plaintiff (taxpayer) for an award of attorney fees. The fees requested include fees expended in both the proceedings in the Magistrate Division and the Regular Division of the court. Taxpayer was unsuccessful in the Magistrate Division for the reason that taxpayer presented an appraisal report, but did not make available the expert witness who had prepared that report. That shortcoming was remedied in the presentation by taxpayer in the Regular Division. This court decided the matter entirely in favor of taxpayer. The primary reason for that decision was the virtually non-existent support offered by the appraiser for Defendant-Intervenor Marion County Assessor (the county) to support his conclusion of value for the property in ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS TC 5213 Page 1 of 3 question. That lack of support extended from market evidence to a lack of support in the appraisal literature for the approaches taken by the appraiser for the county. Defendant in this proceeding (the department) makes no objection to the reasonableness of the time expended on this matter or the rates charged in this matter as far as proceedings in the Regular Division. However, the department does challenge the entitlement of taxpayer to an award of fees for proceedings in the Magistrate Division. The court’s views on the factors found in ORS 20.075, to the extent relevant, follow: 1 The court does not conclude that either party acted in bad faith. However, each party failed as to the objective reasonableness of the positions they took. Taxpayer’s failure was not providing adequate expert testimony in the Magistrate Division to support its position. The county and department failed in the Regular Division to present expert testimony and analysis that was credible or supported by facts or appraisal theory. The appraiser for the county simply made unsupported conclusions without in any way searching out market evidence. Although the county and the department did not bear the burden of proof in this matter, the testimony and evidence they presented in no way supported a valid conclusion as to the very significant difference in value for which they were contending. The court is strongly of the view that absent an award of fees in this matter, the unsupported and extreme position of the county will be repeated. That will result in taxpayers having to litigate unnecessarily. That said, the fee award should not include fees taxpayer incurred in connection with the proceedings in the Magistrate Division. Had taxpayer presented expert witness support for the 1 The court’s references to the Oregon Revised Statutes (ORS) are to 2013. ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS TC 5213 Page 2 of 3 report on which it relied, this court concludes that it most probably would have prevailed either in whole or in part. The department argues that it should not have to pay the fees awarded here. This argument has been made before and this court has rejected it. The governing statute specifies that payment is to be made by the department. ORS 305.490(4)(b). The court awards fees and expenses allowed by ORS 305.490 to taxpayer in respect of the proceedings in the Regular Division. No fees or expenses are awarded in respect of the proceedings in the Magistrate Division except for costs associated with any appraisal report that was introduced into evidence in the Regular Division. The parties are directed to confer to make the allocation of fees and expenses called for by this order. If the parties cannot come to an agreement on the form and substance of a supplemental judgment, they are to report that to the court and a further hearing will occur. Now, therefore, IT IS ORDERED that Plaintiff’s Motion for Award of Attorney Fees and Costs is granted as specified above. Dated this ___ day of September, 2015. Henry C. Breithaupt Judge THIS DOCUMENT WAS SIGNED BY JUDGE HENRY C. BREITHAUPT ON SEPTEMBER 29, 2015, AND FILED THE SAME DAY. THIS IS A PUBLISHED DOCUMENT. ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS TC 5213 Page 3 of 3
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