No. 50 October 5, 2017 1

IN THE SUPREME COURT OF THE

STATE OF OREGON

TRI-COUNTY METROPOLITAN

TRANSPORTATION DISTRICT OF OREGON,

an Oregon municipal corporation,

Petitioner on Review,

v.

Joseph Y. AIZAWA, et al.,

Defendants,

and

Deborah L. NOBLE-IRONS,

nka Deborah L. Noble,

Respondent on Review.

(CC 1108-10129; CA A155714; SC S064112)

On review from the Court of Appeals.*

Argued and submitted March 8, 2017.

Keith M. Garza, Law Office of Keith M. Garza, Oak 

Grove, argued the cause and filed the brief for petitioner on 

review. Also on the brief was Erik Van Hagen, Portland.

Joshua D. Stadtler, Dunn Carney Allen Higgins & Tongue 

LLP, Portland, argued the cause for respondent on review. 

Brian R. Talcott filed the brief with Joshua D. Stadtler.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Nakamoto, Flynn, and Duncan, Justices.**

KISTLER, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

** On appeal from the Multnomah County Circuit Court, Jerry B. Hodson, 

Judge. 277 Or App 504, 371 P3d 1250 (2016)

** Baldwin, J., retired March 31, 2017, and did not participate in the decision 

of this case. Brewer, J., retired June 30, 2017, and did not participate in the decision of this case.
2 TriMet v. Aizawa

Case Summary: After accepting TriMet’s offer of compromise in a condemnation action, defendant sought to recover both the pre-offer fees that she had 

incurred in litigating the action and the post-offer fees that she had incurred 

in determining the amount of the fee award. The trial court and the Court of 

Appeals rejected TriMet’s argument that ORS 35.300(2) precluded defendant 

from recovering the fees that she had incurred in determining the amount of 

the fee award. The Supreme Court affirmed. Held: In enacting ORS 35.300(2), 

the legislature did not intend to depart from Oregon’s usual method of awarding 

attorney fees; that is, a party may recover both the fees incurred in litigating 

the fee-generating claim and the fees incurred in determining the amount of the 

resulting fee award.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
Cite as 362 Or 1 (2017) 3

KISTLER, J.

Ordinarily, a party entitled to recover attorney fees 

incurred in litigating the merits of a fee-generating claim 

also may receive attorney fees incurred in determining the 

amount of the resulting fee award. See Strawn v. Farmers 

Ins. Co., 353 Or 210, 234, 297 P3d 439 (2013) (awarding 

so-called “fees on fees” to which no objection was raised); 

Crandon Capital Partners v. Shelk, 219 Or App 16, 42, 181 

P3d 773 (2008) (describing that rule as reflecting “longstanding precedent in Oregon”). The question that this case 

presents is whether the legislature intended to depart from 

that accepted practice when it authorized property owners 

to recover their attorney fees in condemnation actions. The 

trial court ruled that it did not and awarded the property 

owner in this case the fees that she had incurred both in 

litigating the merits of the underlying condemnation action 

and in determining the amount of the fee award. The Court 

of Appeals affirmed. TriMet v. Aizawa, 277 Or App 504, 371 

P3d 1250 (2016). We now affirm the Court of Appeals decision and the trial court’s judgment.

In the course of constructing the Portland-Milwaukie 

light-rail line, Tri-County Metropolitan Transportation 

District of Oregon (TriMet) sought to acquire part of the 

American Plaza Condominium. Defendant Noble owned a 

fractional share of that property, for which TriMet initially 

offered her $1,040. When Noble declined that offer, TriMet 

filed a condemnation action against her on August 4, 2011, 

and ultimately increased its offer to $22,000. Approximately 

a year and a half after TriMet filed this condemnation 

action, it made a formal “offer of compromise” to Noble, 

which stated:

“Pursuant to ORS 35.300, plaintiff [TriMet] offers defendant [Noble] the amount of $22,000 for just compensation for the property described in the Complaint and any 

compensable damages to the remaining property of defendant. This offer does not include any amount for costs and 

disbursements, attorney fees, and expenses. If the offer 

is accepted, recoverable costs and disbursements, attorney fees and expenses shall be awarded pursuant to ORS 

35.300(2).”
4 TriMet v. Aizawa

Noble accepted TriMet’s offer, and the parties executed a stipulated judgment, which awarded Noble $22,000 

for her property and provided that she could petition for her 

attorney “fees and costs pursuant to ORCP 68 and ORS 

35.300.” In petitioning for her fees, Noble sought to recover 

two related but separate types of fees. First, she sought the 

pre-offer fees that she had incurred in litigating the fair 

market value of her property. TriMet agreed that Noble was 

entitled to those fees pursuant to ORS 35.300(2). Second, 

Noble sought to recover the post-offer fees that she had 

incurred in determining the amount of the fee award that 

she was entitled to receive under ORS 35.300(2). TriMet 

did not agree that Noble could recover those fees. As noted, 

the trial court disagreed with TriMet and ruled that Noble 

could recover both types of fees, as did the Court of Appeals.

On review, TriMet relies primarily on what it views 

as the “plain text” of ORS 35.300(2) to argue that Noble may 

not recover any fees that she incurred after TriMet served 

her with the offer of compromise. Noble, by contrast, relies 

primarily on the context of that statute and its legislative 

history. She contends that the text is not as plain as TriMet 

perceives and that the text, considered in light of the statute’s context and legislative history, fits comfortably with 

established Oregon law, which permits a party to recover 

not only the attorney fees that it incurred in litigating the 

merits of a feegenerating claim but also the attorney fees 

that the party incurred in determining the amount of a reasonable fee award.

In considering the parties’ arguments, we first 

describe the condemnation statutes briefly and then turn 

to the text, context, and legislative history of the statute 

at issue here, ORS 35.300. ORS chapter 35 sets out a process for public bodies to follow in condemning private property.1

 At least 40 days before filing an action to condemn 

private property, a public body must make a written offer 

to the property owner, which the owner must accept or 

1 Statutorily, the power to condemn private property is not limited to public 

bodies. See ORS 35.215(4) (recognizing that a private corporation may have the 

power to exercise the right of eminent domain). For the purposes of this opinion, 

we refer only to public bodies (public bodies generally or TriMet specifically) as 

exercising the right to condemn private property for public use.
Cite as 362 Or 1 (2017) 5

reject within a specified period of time. ORS 35.346(1), (4). 

If the owner rejects the pretrial offer, proceeds to trial, and 

recovers more than the public body offered, then the owner 

shall receive, in addition to compensation for the property, 

the owner’s “costs and disbursements including reasonable 

attorney fees and reasonable expenses.” ORS 35.346(7). 

Conversely, if the owner rejects the public body’s pretrial 

offer and recovers less than that offer, the owner may not 

recover its costs and fees. Id.2

ORS 35.300 strikes a middle ground between those 

two extremes. Subsection (1) of that statute provides that, 

in addition to making a written offer to a property owner 

before filing a condemnation action, a public body also may 

make an “offer of compromise” up to 10 days before trial. ORS 

35.300(1). An offer of compromise must identify the amount 

offered as just compensation for the property3

 and also may 

include an amount offered for the reasonable costs and fees 

that the property owner has incurred. Id. Subsections (2) 

through (4) then set out three options for awarding costs and 

fees, which vary depending on what the public body offered, 

what the property owner accepted, and how the property 

owner fared if it rejected the offer and the case went to trial.

The option set out in subsection (2) applies in this 

case. That subsection provides that, if an owner accepts an 

offer of compromise that identifies an amount as just compensation but does not include an amount for costs and 

attorney fees, then:

“the court shall give judgment to the [property owner] for 

the amount offered as just compensation for the property 

* * * and, in addition, for costs and disbursements, attorney 

fees and expenses that are determined by the court to have 

been incurred before service of the offer on the [owner].”

2 ORS 35.346(7) does not state that proposition directly. However, it provides that an owner may recover its costs and fees “in the following cases, and no 

other.” It then identifies two instances in which an owner can recover costs and 

fees: (1) when the owner recovers more than the pretrial offer and (2) when the 

pretrial written offer was not made in good faith. ORS 35.346(7)(a), (b).

3 ORS 35.300(1) refers to “the amount offered as just compensation for the 

property and as compensable damages to the remaining property of the defendant.” For ease of reference, we use the phrase “just compensation” to refer to 

both just compensation and compensable damages to the owner’s remaining 

property.
6 TriMet v. Aizawa

ORS 35.300(2). In TriMet’s view, the text of that subsection 

is unambiguous. By authorizing recovery of fees “incurred 

before service of the offer,” ORS 35.300(2) precludes an 

award of any and all fees incurred after that date. Noble 

takes a different view of the matter. In her view, the fact 

that ORS 35.300(2) authorizes a limited recovery of one 

type of fees (pre-offer fees incurred in litigating the merits 

of a condemnation action) does not mean that the legislature 

intended to preclude a litigant from recovering a different 

type of fees (fees incurred in determining the amount of the 

pre-offer fee award to which the owner is entitled).

The parties’ dispute presents an issue of statutory 

interpretation, which we resolve by considering the text, 

context, and legislative history of ORS 35.300(2). State v. 

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (setting out 

our methodology for determining the legislature’s intent). 

We begin with the text of ORS 35.300(2).

ORS 35.300(2) is directed at recovering one type 

of attorney fees—the fees that a property owner incurred 

in litigating the merits of a condemnation action before the 

public body served an offer of compromise. By definition, no 

other type of attorney fees will have been incurred before 

service of an offer of compromise. It follows that, in specifying that a court shall give judgment for the fees that a property owner incurred before the public body served an offer 

of compromise, ORS 35.300(2) implies that a court shall not 

give judgment for post-offer fees incurred in litigating the 

merits of a condemnation action.

Whether ORS 35.300(2) also precludes recovery of 

other types of postoffer fees is a question that the text of 

subsection (2) does not definitively answer. It is possible to 

read the text of subsection (2) as TriMet does and say that 

the legislature intended to foreclose the recovery of all categories of post-offer fees. The text of subsection (2), however, 

lacks words like “only,” “all,” or “any,” which would have 

made clear that the legislature intended to preclude any 

and all fees that a property owner incurred after service of 

an offer of compromise.4

 It is also possible to read the text 

4 TriMet’s argument that ORS 35.300(2) is unambiguous depends on 

reading that statute as providing that, if a property owner accepts an offer of 
Cite as 362 Or 1 (2017) 7

of subsection (2) as Noble does and say that authorizing a 

limited recovery of one type of fees (pre-offer fees incurred 

in litigating the merits of a condemnation claim) does not 

preclude recovery of other types of post-offer fees. The text 

permits either interpretation.

In seeking to determine the legislature’s intent, 

we consider a statute’s context as well as its text. Stevens 

v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004). Context 

includes the preexisting common law, case law, and statutory framework in which the law was enacted. Id. In this 

case, two contextual sources bear on the meaning of ORS 

35.300(2): prior cases interpreting ORCP 68 and the other 

subsections in ORS 35.300.

ORCP 68 sets out a procedure for recovering attorney fees. ORCP 68 C(4). The rule does not specify when a 

party may recover fees; however, it defines the term “attorney fees” for the purposes of the rule. ORCP 68 A(1). It provides that “‘[a]ttorney fees’ are the reasonable value of legal 

services related to the prosecution or defense of an action.” 

Id. The Court of Appeals explained in Crandon Capital 

Partners that “there is longstanding precedent in Oregon 

[interpreting ORCP 68] that [in addition to recovering fees 

incurred in litigating the merits of a fee-generating claim,] 

a party may recover its attorney fees incurred as part of 

the fee application and litigation process.” 219 Or App at 

42; accord Strawn, 353 Or at 234 (awarding such fees). The 

basis for those decisions is that the process of recovering 

“attorney fees to which a * ** party is entitled by statute 

is ‘related to the prosecution or defense of the action’” and 

thus recoverable under ORCP 68. 219 Or App at 43 (quoting ORCP 68 A(1)). TriMet does not contend otherwise. As 

it acknowledged in its opening brief, “TriMet did not below 

and does not here challenge the way in which the Court of 

Appeals historically has treated the rule: ORCP 68 permits 

the recovery of fees-on-fees.”

compromise, then “the court shall give judgment to the defendant for the amount 

offered as just compensation * ** and, in addition, for [only those] costs and disbursements, attorney fees and expenses that are determined by the court to have 

been incurred before service of the offer on the defendant.” The text lacks the 

bracketed words that TriMet’s interpretation presumes.
8 TriMet v. Aizawa

In 2009, the legislature enacted ORS 35.300 against 

the backdrop of that longstanding Oregon precedent. See Or 

Laws 2009, ch 530, § 5 (enacting what is now codified as 

ORS 35.300); Crandon Capital Partners, 219 Or App at 43 

(reaffirming that longstanding precedent). Given that context, we think that the question in this case is more properly framed as follows: 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?

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.

Another contextual clue points in the same direction: the other subsections in ORS 35.300. As discussed 

above, subsection (1) of ORS 35.300 provides that an offer of 

compromise must include an offer of just compensation and 

may include an offer of costs and attorney fees. Subsections 

(2) through (4) then set out three options for awarding costs 

and fees. Subsection (3) adds little to the understanding 

of subsection (2); the two subsections effectively duplicate 

each other.5

 Subsection (4), however, sheds more light on the 

5 As discussed above, ORS 35.300(2) specifies the costs and fees that a property owner can recover if the owner accepts an offer that includes an amount for 

just compensation but no amount for costs and fees. Subsection (3) is effectively 

identical. It specifies the costs and fees that an owner can recover if the offer of 

compromise contains an amount for just compensation and an amount for costs 

and fees, but the owner accepts only the amount offered for just compensation. 

In both instances, there will be an agreement only as to just compensation, and, 

in both instances, subsections (2) and (3) provide that the owner shall recover 
Cite as 362 Or 1 (2017) 9

issue. That subsection specifies the costs and fees that may 

be recovered if a property owner does not accept an offer of 

compromise and fails to obtain a more favorable judgment at 

trial.

Subsection (4) provides that, if an owner fails to 

obtain a more favorable judgment than the offer of compromise: (a) the property owner “may not recover prevailing party fees or costs and disbursements, attorney fees 

and expenses that were incurred on or after the service 

of the offer”; (b) “[u]nless the parties agree otherwise, the 

court shall give judgment to the [property owner] for costs 

and disbursements, attorney fees and expenses that were 

incurred by the [property owner] before service of the offer”; 

and (c) the court shall give judgment to the public body for 

its “costs and disbursements, other than prevailing party 

fees, incurred by the [public body] on and after the service of 

the offer.” ORS 35.300(4)(a)-(c) (emphasis added).

Subsection (4) expressly provides that, if an owner 

rejects an offer of compromise and fails to obtain a more 

favorable verdict at trial, the court shall award the owner 

its pre-offer costs and fees, but it shall not award the owner 

its post-offer costs and fees. If TriMet were correct—if the 

direction in paragraph (4)(b) to award an owner the fees it 

incurred in litigating the merits of a condemnation claim 

before service of an offer of compromise precluded an award 

of all post-offer fees—then a substantial part of subsection (4) would be surplusage. If TriMet were correct, there 

would have been no need for the legislature to prohibit, as 

ORS 35.300(4)(a) does, awarding post-offer costs and fees.6

Given ORS 35.300(4)(a), we cannot read ORS 

35.300(4)(b) as broadly as TriMet does. Moreover, ORS 

35.300(4)(b) is materially indistinguishable from ORS 

the agreed just compensation and “costs and disbursements, attorney fees and 

expenses incurred by the [property owner] before service of the offer.” ORS 

35.300(2), (3).

6 TriMet argues that ORS 35.300(4)(a) is not completely redundant because 

it also prohibits awarding the property owner a prevailing party fee. However, 

most of ORS 35.300(4)(a) is focused on prohibiting post-offer costs and fees, and 

TriMet never explains how we can agree with its interpretation of ORS 35.300(2) 

(and by extension 35.300(4)(b)) without rendering large parts of ORS 35.300

(4)(a) redundant.
10 TriMet v. Aizawa

35.300(2),7

 and we assume that the legislature intended 

that both provisions would have the same meaning. See 

Figueroa v. BNSF Railway Co., 361 Or 142, 159, 390 P3d 

1019 (2017) (“Ordinarily, we assume that, when the legislature uses the same terms throughout a statute, those terms 

have the same meaning.”). Put differently, if the other paragraphs of ORS 35.300(4) lead us to conclude, as we do, that 

ORS 35.300(4)(b) authorizes the recovery of one category of 

pre-offer costs and fees and does not limit the recovery of all 

categories of post-offer costs and fees, then it follows that 

ORS 35.300(2) has the same meaning.

Those contextual sources shed light on the meaning of ORS 35.300(2). Read together, the text and context of 

ORS 35.300(2) direct a court to award a property owner who 

accepts an offer of just compensation the reasonable costs 

and fees that the owner incurred in litigating the merits of 

the condemnation action before service of the offer. They do 

not require a court to depart from the customary rule that a 

party entitled to recover the costs and fees incurred in litigating the merits of a fee-generating claim also may recover 

the costs and fees reasonably incurred in determining the 

amount of the resulting fee award.

In addition to considering the text and context, 

we look to the statute’s legislative history for guidance. 

See Gaines, 346 Or at 171-72. What is now codified as ORS 

35.300 was enacted in 2009 as part of Senate Bill (SB) 794. 

Or Laws 2009, ch 530, § 5. As initially proposed, SB 794 

was relatively rudimentary. See Bill File, SB 794, Jan 26, 

2009 (initial draft). It provided for a generic offer of compromise that, if accepted, would result in a judgment. Id.

§ 5(1).8

 It also provided that, if the property owner rejected 

the offer and did not “obtain a more favorable judgment 

7 ORS 35.300(2) differs from ORS 35.300(4)(b) in that, in addition to directing the trial court to include an award of pre-offer costs and fees in the judgment, 

it directs the trial court to include the amount offered and accepted for just compensation. It also differs in minor details from ORS 35.300(4)(b). However, the 

two provisions are virtually identical for the purposes of the issue that this case 

presents.

8 As initially drafted, the bill referred to an “offer of compromise” without 

distinguishing, as the legislature later did, between amounts offered for just compensation and amounts offered for costs and fees. See Bill File, SB 794, Jan 26, 

2009, § 5(1) (initial draft).
Cite as 362 Or 1 (2017) 11

than the offer, the [property owner] may not recover prevailing party fees or costs and disbursements, attorney fees 

or expenses * ** that were incurred after the date of the 

offer.” Id. § 5(2).

Beyond that, the bill was silent regarding offers 

of compromise and a property owner’s right to recover 

costs and fees. The bill, as initially drafted, did not specify 

whether an offer of compromise could include an offer of just 

compensation without also including an offer of costs and 

fees. It did not specify what would occur if a property owner 

accepted an offer of compromise that included only an offer 

of just compensation. Finally, although the bill specified that 

a property owner who rejected an offer of compromise and 

failed to obtain a more favorable verdict could not recover 

post-offer costs and fees, the bill did not specify whether the 

property owner could recover pre-offer costs and fees.

Oregonians in Action, a citizens group that advocates for private property rights, raised those concerns about 

the bill, even before the Senate Judiciary Committee held 

its first hearing on it. Audio Recording, Senate Judiciary 

Committee, SB 794, Apr 16, 2009, at 8:10:23 a.m. (testimony 

of Harry Auerbach), https://olis.leg.state.or.us (accessed Aug 

28, 2017). In response, representatives from various public 

bodies met with representatives from Oregonians in Action 

and jointly proposed an amendment to the bill. Id. The proposed amendment made two changes that are relevant here. 

See Bill File, SB 794 (Apr 30, 2009 amendment). First, it 

added a subsection to address what would occur if an owner 

accepted an offer of compromise that included an amount for 

just compensation but not an amount for the owner’s costs 

and fees. Id. Second, it added a subsection to address what 

would occur if the owner rejected an offer of compromise 

and failed to obtain a more favorable judgment at trial. Id.

Both subsections were virtually identical. Each provided, 

with only minor variation, that whether a property owner 

accepted or rejected the offer of compromise, the court shall 

give judgment to the property owner for costs and disbursements, attorney fees, and expenses that were incurred 

before the date of the offer. Bill File, SB 794 (Apr 30, 2009 

amendment).
12 TriMet v. Aizawa

Harry Auerbach, a representative from the City of 

Portland, explained the reason for the proposed amendment. 

Audio Recording, Senate Judiciary Committee, SB 794, Apr 16,

2009, at 8:10:23 a.m., https://olis.leg.state.or.us (accessed 

Aug 28, 2017). He told the Senate Judiciary Committee that 

Oregonians in Action had been concerned that SB 794, as 

initially drafted, “would have prevented [a] property owner 

from recovering costs and fees incurred up to the date of 

[the] offer of compromise.” Id. He said that that had not been 

the drafters’ understanding or intent. Id. He then explained 

that the amendment was

“designed to clarify that when the government makes an 

offer of compromise during the course of the litigation, the 

owner is entitled to recover costs, expenses, and attorney’s 

fees incurred as of the date of the offer whether the owner 

accepts the offer or whether the owner rejects the offer.”

Id. The Committee voted to adopt the proposed amendment 

to SB 794 and to send the bill, as amended, to the Senate 

with a do-pass recommendation.

Before the House Judiciary Committee, Auerbach 

explained that all the participants had recognized that SB 

794, as it emerged from the Senate, was a work in progress. Audio Recording, House Judiciary Committee, SB 794, 

May 19, 2009, at 2:38:02 p.m., https://olis.leg.state.or.us 

(accessed Aug 28, 2017). Given that recognition, Auerbach 

and Oregonians in Action proposed yet another amendment 

to SB 794, which made primarily three changes to the bill, 

none of which is relevant to the issue presented here.9

 Not 

surprisingly, most of Auerbach’s testimony before the House 

Judiciary Committee did not touch on matters that bear 

on this case. See id. However, both Auerbach and David 

Hunnicutt, speaking on behalf of Oregonians in Action, 

emphasized one point that is relevant here.

In concluding his testimony, Auerbach told the 

House Judiciary Committee:

9 The House amendments: (1) provided a means for determining when 

an offer of compromise that includes an amount for just compensation and an 

amount for costs and fees would be more favorable than the result obtained at 

trial; (2) added what is now codified as ORS 35.300(3); and (3) made minor wording changes to the AEngrossed version of SB 794. See Bill File, SB 794 (June 2, 

2009 amendments).
Cite as 362 Or 1 (2017) 13

“The only other thing that I want to make sure that 

I don’t forget to say is that we’re not asking through this 

bill to do anything that’s unusual in civil litigation. All 

we’re really trying to do is incorporate a version of what’s 

already in existence generally in civil cases through the 

rules of civil procedure for offers of compromise into the 

specific context of eminent domain litigation. So, it’s a process that already exists in other contexts. We’re just trying 

to tailor something that’s applicable to this special kind of 

proceeding.”

Id. Hunnicutt made the same point. Id. at 2:51:43 p.m. He 

told the committee:

“Once the court determines that fees are entitled preand post-offer, the amount of the fees will be determined in 

the normal course. We’re not trying to change the method 

for determining attorney’s fees as they are in any other 

civil case. This bill doesn’t try and change that.”

Id. Having heard that testimony, the House Judiciary 

Committee adopted the proposed amendment and sent 

SB 794, as amended, to the House. After the House approved 

the bill, the Senate acceded to the House amendments, 

and the Governor signed the bill. Senate Journal, Regular 

Session, 2009, S-141.

We draw two conclusions from that history. First, 

ORS 35.300(2) was added to SB 794 for one reason: to make 

clear that a property owner who accepts an offer of compromise will receive the pre-offer costs and fees that the owner 

incurred in litigating the merits of the condemnation action. 

It was intended to authorize that category of pre-offer costs 

and fees. It was not intended to limit all categories of postoffer costs and fees. Second, both Auerbach and Hunnicutt 

emphasized that SB 794 would not change the normal rules 

for awarding attorney fees in civil actions. In this context, 

their testimony means that SB 794 was not intended to displace customary rules, such as ORCP 68, which had been 

construed as permitting a party to recover both the costs 

and fees incurred in litigating a fee-generating claim and 

the costs and fees incurred in determining the amount of 

the resulting fee award.
14 TriMet v. Aizawa

We also note that Auerbach’s statement—that the 

bill’s drafters were “trying to * * * incorporate what’s already 

in existence generally in civil cases through the rules of civil 

procedure for offers of compromise”—points in the same 

direction.10 While Auerbach’s reference to ORCP 54 E was 

oblique, it was consistent with his and Hunnicutt’s express 

point that SB 794 was not intended to change the normal 

rules for determining attorney fees.

The legislative history confirms what the text, read 

in context, implies: A property owner who accepts an offer 

of compromise under ORS 35.300(2) may recover both the 

pre-offer costs and fees reasonably incurred in litigating the 

merits of the condemnation action and the post-offer costs 

and fees reasonably incurred in determining the amount of 

the resulting fee award.11

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

10 Auerbach was apparently referring to ORCP 54, which allocates costs and 

fees when a party asserting a claim accepts or rejects an offer to allow judgment on the claim. See ORCP 54 E(2), (3). ORS 35.300(2) is comparable to ORCP 

54 E(2), which provides that when the party asserting a claim accepts an offer 

to allow judgment, the court shall enter a stipulated judgment for the amount 

offered and accepted; ORCP 54 E(2) also provides that the party asserting the 

claim may recover its costs and fees “as provided in Rule 68.” When the legislature enacted ORS 35.300, settled precedent interpreting ORCP 68 permitted 

a party to recover both the costs and fees reasonably incurred in litigating the 

merits of the fee-generating claim and the costs and fees reasonably incurred in 

determining the amount of the resulting fee award. 

11 The issue in this case is whether the direction in ORS 35.300(2) to include 

an award of pre-offer costs and fees in the judgment precludes an award of the 

costs and fees incurred in determining that fee award. This case does not require 

us to decide whether ORS 35.300(4) limits a party’s ability to recover “fees on 

fees,” and we express no opinion on that issue.