Here's one we've been meaning to post for a while because it is on one our favorite (sub)topics: attorneys' fees in eminent domain. Indeed, it is about what we consider a very interesting subtopic of the subtopic, the question of whether an owner can recover attorneys' fees for the efforts expended in recovering attorneys' fees, the aptly-named "fees on fees" question. We did a case like this a few years ago in the Hawaii Supreme Court, and have been hooked ever since.
The opinion, Tri-County Metro. Trans. Dist. of Oregon v. Aizawa, No. S064112 (Oct. 5, 2017), is from the Oregon Supreme Court, and overall, may not be that relevant to your specific jurisdiction because it focuses on the court's interpretation of the Oregon fee-shifting statute and a rule of civil procedure. Thus, your mileage may vary back home. But we encourage you to review it anyway (even in a jurisdiction like ours where fee-shifting in eminent domain cases is only available when a condemnation fails or is dismissed by the condemning agency), because it is, we think, a good exemplar of how courts should approach a situation where a statute can be reasonably read more than one way, and the court is forced to rely on sources other than the text in order to confirm how the text should be read.
The short story is that in Oregon, "fees on fees" is generally an accepted thing, and a party can recover attorneys fees expended in the effort to recover attorneys fees. (Which seems right to us, if the goal of fee-shifting statutes is to make the party whole.) The question here was whether the Oregon legislature had deviated from the usual rule in condemnation cases that are settled by compromise, and not litigated. One way of reading the statute applicable to those circumstances was that the condemnor is only liable for pre-offer fees, because the statute only mentions pre-offer fees, and is otherwise silent regarding whether a condemnee can recover fees for efforts she undertakes after the offer of compromise by the condemnor. Here, the owner incurred post-offer attorneys fees to recover attorneys fees. Got it?
"Ah ha!" argued the District, the statute expressly contemplates pre-offer fees, which means that all other fees are precluded. The owner didn't see it the same way, and argued that simply because the legislature recognized pre-offer fees, didn't mean it prohibited post-offer fees. The trial court, court of appeals, and ultimately the Oregon Supreme Court agreed, even while noting "[t]he text permits either interpretation." The court framed the issue this way:
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?
Slip op. at 8. The court held it didn't:
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.
Id.
Tri-County Metropolitan Trans. Dist of Oregon v. Aizawa, No. SC S064112 (Ore. Oct. 5, 2017)
