Douglas County v. Brown

THORNTON, J. This appeal involves a dispute as to the construction of ORS 35.346, which authorizes the awarding of attorney fees to landowners in condemnation proceedings under certain circumstances. Defendant is a landowner whose property was taken by plaintiff Douglas County on April 14, 1977. "Just compensation” for the taking was determined by the jury in August, 1978. Defendant moved for the allowance of costs and attorney fees pursuant to this statute, contending that the amount determined by the jury exceeded the county’s highest offer to defendant made on March 31, 1978, more than 30 days prior to trial. He appeals from the trial court’s order denying that motion. We affirm. The original complaint was filed April 14, 1977, and sought a determination of the value of defendant’s property taken, allowing one point of access to his remaining property. That value was alleged to be $5,500. Subsequently, an amended complaint was filed seeking a determination of the value of that property, but allowing two points of access to defendant’s remaining property. The amended complaint alleged the value of the property taken was $4,300. On March 31, 1978, the county offered defendant the sum of $6,000 in full settlement for the taking. The offer was rejected. After trial, the jury returned a verdict in the amount of $5,730. The question presented is whether "the amount of just compensation assessed by the verdict in the trial exceeds the highest written offer in settlement.” Allowance of attorney fees is purely a matter of statute. See Highway Com. v. Stockhoff 18 Or App 233, 524 P2d 1240, rev den (1974). The issue at bar is precisely the same as in any other attorney fee statute case coming before the appellate courts of this state: If a claimant is to recover attorney fees he must bring himself within the terms of the particular statute. [530] The controlling statute is ORS 35.346(2)(a), which provides in pertinent part: "(2) If a trial is held for the fixing of the amount of compensation to be awarded to the defendant owner or party having an interest in the property being condemned, the court shall award said defendant costs and disbursements including reasonable attorney fees and reasonable expenses as defined in subsection (2) of ORS 35.335 in the following cases, and no other: "(a) If the amount of just compensation assessed by the verdict in the trial exceeds the highest written offer in settlement submitted by condemnerto those defendants appearing in the action of at least 30 days prior to commencement of said trial * * (Emphasis added.) Here the county’s final offer was $6,000. The jury verdict was $5,730. Applying the above statute to the facts, it is obvious that defendant is not entitled to recover attorney fees and reasonable expenses. The dissenting opinion is in direct conflict with the above quoted statute. The dissent reaches its result by formulating a new theory, namely, that the county’s pretrial offer must be taken to implicitly include interest from the date of the original taking. Therefore, the dissent reasons, the offer must be deemed to be impliedly reduced by that amount. But that is not what the statute provides. We can find nothing in ORS 35.346 indicating that the county’s pretrial offer is in effect reduced by the amount of interest which has accrued after the taking. Here the landowner simply does not come within the terms of ORS 35.346 because the jury’s award was less than the amount of the county’s pretrial offer. Highway Com. v. Helliwell, 225 Or 558, 358 P2d 719 (1961), which the dissent cites, is not on all fours. In Helliwell, the landowner was claiming that she was entitled to count the interest as part of the award in calculating whether she was entitled to recover attorney fees and expenses under ORS 35.346(2)(a). The [531] court held that interest on the amount awarded is not to be considered. By a parity of reasoning, if interest is not to be considered in calculating the total amount of the award for attorney fees purposes, it should not be considered as diminishing or reducing the amount of the county’s pretrial offer for attorney fee purposes. Affirmed.