State ex rel Stewart v. City of Salem

Under ORS 34.210(2), a trial court has discretion to award attorney fees to a “prevailing party” and may consider the entirety of the circumstances of the litigation when determining whether to award attorney fees on remand. Additionally, the trial court has discretion to determine the reasonableness of a party’s legal position under ORS 20.075(1)(b) and may consider the totality of the circumstances of litigation under ORS 20.075(1)(e) prior to awarding attorney fees on remand.

Relator Stewart (Stewart) appealed a judgment denying his request for attorney fees incurred in his successful suit to obtain a peremptory writ. Initial litigation arose between the parties when the City of Salem (the City) failed to make a final determination on Stewart’s partition application within 120 days after the application was deemed complete as required by ORS 227.178(1). Stewart filed a mandamus petition, and although the trial court initially dismissed the mandamus petition, on appeal Stewart prevailed when the case was reversed and remanded. Stewart successfully petitioned for an award of his appellate attorney fees. Following remand, the trial court issued a peremptory writ directing the City to approve Stewart’s partition plan with certain conditions. Stewart moved for an award of attorney fees and costs, and was awarded all costs except expert witness fees. Stewart was denied these additional fees because the City’s conduct giving rise to the litigation was not reckless, willful, illegal or in bad faith. Stewart appealed this denial, contesting the court’s failure to determine Stewart was the prevailing party prior to the determination of an attorney fee award, the court’s determination that an award of appellate attorney fees in this matter did not preclude a denial of attorney fees on remand, and the court’s application of factors in denying an award of attorney fees. The Court held the trial court characterized Stewart as the prevailing party, and while a designation of “prevailing party” is a prerequisite to an award of attorney fees, the court properly exercised its discretion in denying the award. Further, the trial court properly considered the entirety of the litigation when making a determination, the trial court did not err in concluding the City’s legal position was reasonable for purposes of ORS 20.075(1)(b). Finally, although the trial court erred when it failed to state that the City’s conduct in violating the 120-day rule was per se “illegal” under ORS 20.075(1)(a), under the totality of the circumstances, remand in this case would serve no purpose. Affirmed.