Phillips v. Polk County

No. 967              November 13, 2025                   711

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   Kathryn PHILLIPS,
                        Petitioner,
                             v.
                     POLK COUNTY
                    and David Harris,
                       Respondents.
                 Land Use Board of Appeals
                         2024031;
                         A185891

    On respondent Polk County’s petition for attorney fees
filed March 13, 2025; appellant’s response filed March 31,
2025; respondent Polk County’s reply filed April 8, 2025; and
appellant’s response to reply filed April 22, 2025.
   Morgan Smith for petition and reply.
   Kathryn Phillips pro se for response and response to
reply.
   Before Egan, Presiding Judge, Lagesen, Chief Judge, and
Joyce, Judge.
   EGAN, P. J.
   The county’s petition for attorney fees is denied.
712                                               Phillips v. Polk County

           EGAN, P. J.
         Respondent Polk County (the county), which prevailed in this judicial review proceeding from a Land Use
Board of Appeals (LUBA) case, Phillips v. Polk County, 

 (2025) (nonprecedential memorandum opinion),
seeks to recover attorney fees from petitioner in the amount
of $5,820 under ORS 20.105(1). According to the county, the
court should award fees under that statute because petitioner’s arguments on review were objectively unreasonable. Petitioner opposes an award of fees. For the reasons
that follow, we conclude that ORS 20.105(1) does not apply
to judicial review of LUBA decisions and, accordingly, deny
the county’s request for attorney fees.
         As we have explained, “[a]s a general rule, Oregon
courts do not award attorney fees to opposing parties in litigation absent a statutory or contractual right.” Andlovec v.
Spoto, 

, 

 (2023); see also
Mattiza v. Foster, 

, 

 (1990) (“From
time to time, the Oregon legislature has created a number
of exceptions to [the attorney-fee] rule for particular classes
of cases” and ORS 20.105(1) is one such exception.). Here,
ORS 20.105(1) is the sole authority under which the county
requests an award of appellate attorney fees.1
         Although neither the county nor petitioner discuss
whether ORS 20.105(1) applies to judicial review of LUBA
decisions, we nonetheless identify that as the relevant question.2 That question is one that requires us to construe the
    1
      Because the county cites only ORS 20.105(1) as a basis for its entitlement
to recover the attorney fees it incurred on judicial review, we express no opinion
regarding whether or not any other statute exists that may provide authority to
award fees to the county in this type of case.
    Although the county cites to the factors listed in ORS 20.075(1) to support its
request for attorney fees, that statute is irrelevant to a request based on a mandatory attorney-fee statute such as ORS 20.105 and, further, does not provide
an independent basis to award fees. See, e.g., Andlovec, 

 (The
factors in ORS 20.075(1) “do not apply to a request for a mandatory award of fees
under ORS 20.105” because the factors only apply when another source provides
a court discretionary authority to award attorney fees.).
    2
      As the Supreme Court explained in Polacek and Polacek, 

,

 (2010), although disputed claims for attorney fees are ordinarily
resolved by addressing the objections filed under ORAP 13.10(6), it is appropriate
to analyze the court’s authority to award the requested attorney fees even if it is
not raised as an objection.
Cite as 

 (2025)                                                713

legislature’s intended meaning of ORS 20.105(1) by first
examining the statute’s text and context. See Polacek and
Polacek, 

, 

 (2010) (“When construing a statute, our goal is to determine the legislature’s
intent in enacting the statute. In doing so, we begin with the
statutory text and context, which are the best evidence of
the legislature’s intent.” (Citing State v. Gaines, 

, 

 (2009).)).
           ORS 20.105(1) provides:
    “In any civil action, suit or other proceeding in a circuit court
    or in the regular division or the magistrate division of the
    Oregon Tax Court, or in any civil appeal to or review by the
    Court of Appeals or Supreme Court, the court shall award
    reasonable attorney fees to a party against whom a claim,
    defense or ground for appeal or review is asserted, if that
    party is a prevailing party in the proceeding and to be paid
    by the party asserting the claim, defense or ground, upon
    a finding by the court that the party willfully disobeyed a
    court order or that there was no objectively reasonable basis
    for asserting the claim, defense or ground for appeal.”
The phrase “any civil appeal to or review by the Court of
Appeals or Supreme Court,” read in conjunction with the
preceding phrase “[i]n any civil action, suit or other proceeding in a circuit court or in [certain divisions of] the
Oregon Tax Court,” indicates that the legislature intended
ORS 20.105(1) to apply to fees incurred before the Court of
Appeals in “civil appeal[s]” arising from “civil action[s].” In
contrast, the statute granting the Court of Appeals jurisdiction over certain LUBA decisions speaks in terms of “judicial review.” See ORS 197.850.3 While the Court of Appeals
has jurisdiction to judicially review certain LUBA decisions
under ORS 197.850, as it did in this case, nothing in ORS
20.105(1) indicates that the attorney fee statute applies to
categories of cases in which the Court of Appeals exercises
its review function beyond civil appeals.4
     3
       The court’s rules make a similar distinction between procedures applicable
to “appeals” and those applicable to “judicial review.” Compare ORAP 3.05 to 3.63
(appellate procedures for cases on “appeal”), with ORAP 4.60 to 4.74 (appellate
procedures for certain land use cases, including LUBA cases, on “judicial review”).
     4
       As set forth above, ORS 20.105(1) provides for an award of attorney fees
in a “civil appeal to or review by the Court of Appeals or Supreme Court.” The
court notes that, as discussed, that section provides for fees in civil actions and
714                                              Phillips v. Polk County

         The legislative history of ORS 20.105(1) is consistent with that understanding. See Ellison v. Dept. of Rev.,

, 160, 

 (2017), adh’d to as modified
on recons, 

, 

 (2018) (“[W]e consider
[a statute’s] text in context, giving any pertinent legislative
history such weight as is appropriate.”).
          In Mattiza, 

, the court explained that
ORS 20.105(1) “began in 1983 as House Bill 2253 (sponsored
by the Department of Justice).” Members of the committee
tasked with drafting the language of HB 2253 were particular about the phrase “civil action” and expressed their desire
to ensure that the term “civil action” in the statute was the
“appropriate terminology” to capture “claims for relief”
brought in a court. Tape Recording, House Committee on
Judiciary, HB 2253, Mar 17, 1983, Tape 168, Side A. Further,
testimony submitted by the Solicitor General in 1983 in support of the bill recognized the distinction between the types
of litigation with “civil suits” on one side and “judicial review
of state administrative action” on another. Testimony,
House Committee on Judiciary, HB 2253 and HB 2255, Feb
8, 1983, Ex B (statement of William Gary) (explaining that
“unscrupulous litigants” initiating “frivolous litigation” had
not “confined themselves to civil suits,” but also “[t]he process of judicial review of state administrative action has
experienced the contagion of frivolous litigation”).
         The history demonstrates that the legislature
understood it necessary to pass two separate attorney fee
statutes: one to deter frivolous civil actions (including civil
appeals) and one to deter frivolous judicial review proceedings. In particular, as a part of its proposal, the Department
of Justice presented an accompanying bill, House Bill 2255,
that would amend an attorney fee provision in the Oregon
Administrative Procedures Act to reach “frivolous litigation in a specific context,” that context being “the setting of
judicial review of agency administrative orders.” Testimony,
House Committee on Judiciary, HB 2253 and HB 2255, Feb
8, 1983, Ex B (statement of William Gary).
civil appeals; in context, the term “review” in the statute refers to the Supreme
Court’s discretionary review of cases that arise from “civil actions.” See ORS
2.520; ORAP 9.07 (explaining that the Supreme Court “retains the inherent
authority to allow or deny any petition for review”).
Cite as 

 (2025)                              715

         Therefore, consistent with the plain text of the
statute, the legislative history shows that the bill underlying ORS 20.105(1) was specifically intended to disincentivize “frivolous litigation” in the particular category of civil
actions initiated in a court, as opposed to judicial review.
          Here, the legislature’s intent regarding the applicability of ORS 20.105(1) is clear. That statute does not apply to
judicial review of LUBA decisions. If the legislature intended
that ORS 20.105(1) apply to the Court of Appeals beyond the
distinct category of “civil appeal[s]” so as to extend the statute’s reach, the legislature knew how to do that. See ORS
20.120; Blacknall v. Board of Parole, 

, 

 (2010) (“ORS 20.120 provides that for purposes of
allowing costs and disbursements, review of decisions of ‘an
officer, tribunal, or court of inferior jurisdiction’ is treated
the same as if the review were an appeal.”); see also ORS
174.010 (“In the construction of a statute, the office of the
judge is simply to ascertain and declare what is, in terms or
in substance, contained therein, not to insert what has been
omitted, or to omit what has been inserted[.]”).
         For the reasons set forth above, we determine that
ORS 20.105(1) does not apply to judicial review of LUBA decisions and that, therefore, a prevailing party is not entitled
to a mandatory attorney-fee award under that statute even
when the non-prevailing party raised objectively unreasonable arguments to this court. In sum, ORS 20.105(1) cannot supply the basis for an attorney-fee award in this case.
Given that the county has not sought fees under any authority aside from ORS 20.105(1), we deny the request for an
award of attorney fees incurred on judicial review.
        The county’s petition for attorney fees is denied.