IN THE OREGON TAX COURT
REGULAR DIVISION
Property Tax
DAVID JOHN MEDNANSKY, )
)
Plaintiff, ) TC 5465 v. )
)
DEPARTMENT OF REVENUE, ) State of Oregon, )
)
Defendant, )
)
and )
) ORDER ON DEFENDANT-
CURRY COUNTY ASSESSOR, ) INTERVENOR’S STATEMENT FOR ) ATTORNEY FEES, COSTS AND Defendant-Intervenor. ) DISBURSEMENTS AND PENALTY
This matter is before the court on Defendant-Intervenor’s (the county’s) requests that the court’s judgment include an award of:
• Attorney fees under ORS 20.105(1);
• Penalty under ORS 305.437; and • Costs and disbursements under Tax Court Rule (TCR) 68. 1
(See Inv’s Stmt Atty Fees (Mar 6, 2026) (Stmt); Inv’s Br (Mar 6, 2026) (Br); Order Granting Defendant-Intervenor’s and Defendant’s Motions to Dismiss for Failure to Prosecute (Dismissal Order) (directing that any claims for attorney fees, penalty, and costs and disbursements be incorporated into judgment on the merits). Mednansky v. Dept. of Rev., ___ OTR ___ (Feb 6,
1 Citations to the Oregon Revised Statutes (ORS) are to the 2025 edition. Citations to the TCR are to the edition in effect January 1, 2026.
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 1 of 15 2026) (slip op at 12). Plaintiff filed an objection on March 19, 2026 (Obj), and the county replied on March 23, 2026. 2 Although Plaintiff amended his complaint three times and filed many motions, there is ultimately only one substantive issue in this case: the value, for the 2022-23 property tax year, of Plaintiff’s property: a house and land recorded as county tax account R11007 with a real market value (RMV) shown on the tax roll as $334,680 and an assessed value (AV) shown on the roll as $269,750. 3 (See Inv’s Decl of Wegner at 4-5, ¶ 21.) Plaintiff bears the burden of proof, but he refused to present admissible evidence that the property was worth any less than the roll values, nor did he specify what dollar value he was asking for. Accordingly, shortly before trial was scheduled, the court granted the county’s motion to dismiss the case for want of prosecution. See Dismissal Order at 12. As a result, the roll values remain unchanged. See Linstrom II v. Dept. of Rev., 25 OTR 522 (2024) (dismissal of taxpayer appeal before taxing authority presents case-in- chief causes roll values to remain in place). This result is consistent with the county’s position that the roll values should be upheld. (See Inv’s Ans 3d Am Compl at 2.)
The court concludes that it must award attorney fees and the penalty because Plaintiff consistently maintained an objectively unreasonable position. In his pleadings and motions, Plaintiff attacked the methods the county used to determine his property’s value, and he demanded that the county undertake a revaluation to correct those alleged errors. However, he showed no intention to put on evidence that his property had a specific RMV different from the
2 Defendant Department of Revenue informed the court in its answer that it intended to “tender” the case to the county. By letter dated March 6, 2026, Defendant informed the court by letter that it did not intend to claim an award of its attorney fees.
3
RMV “means the amount in cash that could reasonably be expected to be paid by an informed buyer to an informed seller, each acting without compulsion in an arm’s-length transaction occurring as of the assessment date for the tax year.” ORS 308.205(1). AV is the (typically, lower) amount at which the property is actually taxed pursuant to Oregon’s property tax limitation system commonly known as Measure 50. See Or Const Art XI, § 11; ORS 308.146(2) (AV is lesser of RMV or “maximum assessed value”). ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 2 of 15
RMV on the roll. He therefore never tried to prove that the county’s alleged errors made any difference in the property’s value or in the amount of tax assessed. For that reason, Plaintiff’s position was entirely devoid of factual support. His appeal wasted the resources of his opposing parties and of the court. As to the amount of attorney fees, having considered the applicable factors under ORS 20.075(1) and (2), the court finds no basis to reduce the attorney fee award below the county’s requested amount of $15,395. The court awards the penalty in the amount of $4,000. Plaintiff does not contest the award of costs and disbursements in the amount of $60.88.
I. ISSUES
A. Is the county entitled to an award of attorney fees under ORS 20.105(1)?
B. If so, what amount of attorney fees should the court award?
C. What amount, if any, of penalty under ORS 305.437 should the court award?
D. Is the county entitled to its costs and disbursements?
II. ANALYSIS
A. Is the county entitled to an award of attorney fees under ORS 20.105(1)?
This court is required to award attorney fees to a “prevailing party” if the court finds that the non-prevailing party had no “objectively reasonable basis” for asserting a claim, defense, or ground for appeal. ORS 20.105(1) (court “shall” award reasonable attorney fees if statutory criteria satisfied). 4 The county is the “prevailing party” in this case because, as discussed below,
4 ORS 20.105(1) provides in full:
“(1) 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.”
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 3 of 15
Plaintiff failed to prove any reduction against the roll value, and because the county prevailed on the motion to dismiss that ended the case on the county’s terms. See Dismissal Order; see also Linstrom III v. Dept. of Rev., 25 OTR 527 (2024) (slip op at 3) (same). Therefore, the only issue under ORS 20.105(1) is whether Plaintiff had an objectively reasonable basis for his claim. The county argues that “Plaintiff’s claim was entirely devoid of factual support and was therefore not objectively reasonable.” (Stmt at 1.) Plaintiff responds that he “clearly stated a reasonable basis for his action.” (Ptf’s Opposition at 1.) Plaintiff urges the court to deny any award on the ground that the county and Defendant “unjustly enriched themselves by taxing for something that did not exist.” (Id.)
For purposes of ORS 20.105(1), a claim, defense, or ground for appeal lacks an “objectively reasonable basis” if “it is entirely devoid of legal or factual support at the time it was made.” Mattiza v. Foster, 311 Or 1, 8, 803 P2d 723 (1990) (footnotes omitted) (describing “meritless” claims); see Ellison v. Dept. of Rev., 362 Or 148, 169-70, 404 P3d 933 (2017) (quoting Mattiza’s definition of “meritless” in analyzing whether position was “objectively unreasonable” under ORS 20.105) adh’d to as modified on other issues 362 Or 527, 412 P3d 201 (2018). The test is disjunctive, and in this case, the county bases its request solely on the lack of factual support for Plaintiff’s position. (See Inv’s Br at 2.) See Mattiza, 311 or at 8 n 10 (“[W]e use the disjunctive to mean that a position is meritless if it is not supported by the law as applied to the facts. For example, an airtight legal theory combined with no support on the facts of the case at hand indicates a meritless position.”).
The court notes that, because the court lacks discretion as to whether to award attorney fees under ORS 20.105(1), the court does not apply the factors under ORS 20.075(1) to make that determination. See Andlovec v. Spoto, 326 Or App 525, 527, 532 P3d 531 (2023) (reversing fee award under ORS 20.105(1), where trial court had considered the factors in ORS 20.075(1) instead of determining whether position lacked objectively reasonable basis).
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The court agrees with the county that Plaintiff’s position lacks any factual support. That is a problem of Plaintiff’s own making, as a reduction of the value of his property has always been the central goal of his appeal. Plaintiff initially appealed to the county board of property tax appeals, which has only limited authority to “hear petitions for the reduction” of property values as determined by the county assessor, or to hear certain penalty claims not relevant here. See ORS 309.026(2). 5 (Inv’s Ex F at 1.) Dissatisfied, Plaintiff appealed the board’s order to the Magistrate Division as authorized by ORS 309.110(7), and from the Magistrate Division’s decision Plaintiff appealed de novo to this division. (See Ptf’s 3d Amend Compl at 1.) In this division, Plaintiff’s claim consistently was “aimed at reducing the subject property’s RMV as of January 1, 2022,” notwithstanding multiple changes to his factual allegations and the introduction and abandonment of various legal theories. Mednansky v. Dept. of Rev. ___OTR ___ (Nov 18, 2026) (slip op at 5) (allowing filing of Third Amended Complaint on the ground that Plaintiff asserted no “new claim”).
By challenging the RMV of his property in this court, Plaintiff took on a burden of proof, namely, to show that the actual RMV is something less than the RMV shown on the roll. See PacifiCorp v. Dept. of Rev., 25 OTR 227, 245-252 (2023), rev’d on other grounds, 374 Or 189 (2025). As this court has repeatedly held in other cases, and as the court specifically informed Plaintiff in this case, Plaintiff’s burden was to provide competent evidence of the RMV, which means more than merely criticizing the county’s position, and more than seeking an adjustment or discount from the roll value that the assessor previously determined. Plaintiff was required to “affirmatively prov[e] RMV from the ‘bottom up,’ in a way that considers the sales comparison, cost, and income approaches” as required by Defendant’s administrative rules. (Id. at 10 (citing
5 A statutory amendment by the 2023 legislature changed the name of the board to the “property value appeals board”; the change became operative July 1, 2024, after Plaintiff’s appeal. Or Laws 2023, ch 29, §§ 23, 43. ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 5 of 15 cases).) See ORS 308.205(2) (RMV “in all cases shall be determined by methods and procedures in accordance with rules adopted by the Department of Revenue); OAR 150-308- 0240(2)(a) (requiring consideration of sales comparison, cost, and income approaches, as defined).
The court finds that Plaintiff was utterly unwilling to carry his burden. First, Plaintiff avoided identifying any RMV until pressed by the court in a pre-trial hearing on November 10, 2025. There, he stated that he sought an RMV of $138,844. See Dismissal Order at 7. Later, Plaintiff allowed the court’s deadlines for pre-trial exchange of proposed exhibits to pass without providing any documents. See TCR 56 B (generally requiring appraisal documents to be exchanged 30 days before trial and other documents to be offered as exhibits in case-in-chief to be exchanged five days before trial). Finally, a few days before trial was set to begin, Plaintiff disavowed any particular RMV, arguing that “it was the assessor who should determine how much value was mistakenly added.” (Ptf’s Ltr, Jan 29, 2026, at 2.) The same letter states: “I intended for my case to be based solely on the Third Amended Complaint, with its exhibits as evidence, and I did not require questioning of Defendants and would not offer testimony to be entered as evidence to make my case.” (Id. at 1.) 6 The court interpreted Plaintiff’s latter
6 The prayer for relief in the Third Amended Complaint provides:
“THEREFORE, For the reasons stated above Plaintiff asks this court for a judgment declaring that Assessor must recalculate the RMV on the subject property by removing added value for the 90 and more degrees of views the subject house and property do not have, and recalculate property value comparisons to two property sales. Evidence in Exhibit 7 indicates that a plus value of 115 percent was added to the value of the land of the subject property due to an alleged ocean view. This is the amount of value that must be removed from the valuation of the subject property because that view does not exist.”
(Ptf’s 3d Am Compl at 2.)
The exhibits to the Third Amended Complaint appear designed to support Plaintiff’s criticisms of the County’s valuation methods but include nothing about the sales comparison, cost, and income approaches to value. (See Ptf’s 3d Am Compl, Exs 3-7.) The Third Amended Complaint alleges that the county used invalid methods to determine the roll values (overvaluing for an ocean view that Plaintiff claims the property lacks; attributing ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 6 of 15 statements as an attempt to waive his right to testify or to cross-examine the county’s witnesses in order to obviate appearing in person for trial. 7 Concluding that Plaintiff intended to present no testimony of any witness and no exhibits supporting a specific value, the court dismissed the case for want of prosecution. 8 In summary, the court readily concludes that Plaintiff’s claim lacked an objectively reasonable basis because Plaintiff refused to present any factual support for it. His claim was for an RMV lower than the RMV on the tax roll, but he declared his intention not to try to prove that. He instead hoped to prove flaws in the county’s appraisal processes. However, without also proving what the roll value should be, Plaintiff could not have proved that any such flaws affected the RMV of his property in a way that resulted in a higher amount of tax. Therefore, Plaintiff could not have shown that he is “aggrieved” by any such flawed methodology, and the court could not have heard his claim. See ORS 305.560(2) (complaint shall state “the facts showing how the plaintiff is aggrieved and directly affected by” act or omission of taxing authority); cf. Seneca Sustainable Energy, LLC v. Dept. of Rev., 363 Or 782, 798, 429 P3d 360
Plaintiff’s 2021 purchase price for two lots entirely to the lot comprising the subject property). (See id. at 1-2, ¶¶ 5- 6.) The Third Amended Complaint does not allege or request a specific corrected RMV.
7
Plaintiff declined the court’s request to submit a declaration attesting to his waiver of those rights. (He also declined to submit the court’s requested proof of his financial inability to attend trial.) See Mednansky v. Dept. of Rev., ___OTR ___ (Jan 20, 2026); (Ptf’s Ltr, Jan 29, 2026 at 1) (asserting that court’s requests violated his constitutional rights.).)
8
Plaintiff’s letter states in part:
“In the Complaint’s prayer for relief, I requested this Court to order the Assessor to remove the value the appraiser added for view that did not exist. I did not request a dollar amount; I requested a correction. I did not request a dollar amount because only the Assessor would have known how much value was added for the views * * *.”
(Ptf’s Ltr at 1.)
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(2018) (taxpayer “aggrieved” to the extent its “property tax bills * * * were improperly inflated” by erroneous real market value determination). The court will award attorney fees. 9
B. If so, what amount of attorney fees should the court award?
In determining the amount of any attorney fee award, the court is required to consider a total of 17 statutory factors: eight factors under ORS 305.075(1) and, in addition, nine factors under ORS 305.075(2). 10 As the court directed in the Dismissal Order, the county analyzes each
9 The court’s determination that it must award attorney fees also addresses Plaintiff’s allegation that “Defendants unjustly enriched themselves by taxing for something that did not exist * * *.” (Ptf’s Opposition at 1.) The court assumes that Plaintiff refers to his theory that the county overvalued his property by allegedly misjudging, starting many years ago, the degree of actual or potential ocean view it enjoys. This allegation is simply a reformulation of Plaintiff’s criticism of the county’s valuation methods, and it fails for the same reasons discussed above.
10 ORS 20.075(1) and (2) provide:
(1) Factors to be considered by court in awarding attorney fees; limitation on appellate review of attorney fee award; definition of “attorney” for purposes of laws authorizing award of attorney fees. (1) A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees:
(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the parties.
(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.
(h) Such other factors as the court may consider appropriate under the circumstances of the case.
(2) A court shall consider the factors specified in subsection (1) of this section in determining the amount of an award of attorney fees in any case in which an award of attorney fees is authorized or required by statute. In addition, the court shall consider the following factors in determining the amount of an award of attorney fees in those cases:
(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 8 of 15 factor in its brief submitted with its statement of attorney fees, costs, and disbursements. Plaintiff’s opposition brief objects in general to any fee award but does not specifically criticize the amount requested by the county.
Factor (1)(a): Parties’ conduct in transactions and occurrences that gave rise to the litigation
The county makes no argument based on the parties’ prelitigation conduct. (See Inv’s Br at 5.) The court considers this factor neutral as to the amount of attorney fees to award.
Factor (1)(b): Objective reasonableness of parties’ claims and defenses The court already has determined above that Plaintiff’s sole claim lacked an objectively reasonable basis. The county argues that Plaintiff prolonged the litigation by adhering to his position, as he continues to do. (See Inv’s Br at 5-6; Ptf’s Opposition at 2 (alleging county “tax[ed] for something that did not exist”). The court agrees with the county that it “was forced to continue preparing for trial until the day before it commenced,” and that this factor weighs strongly in favor of awarding the county the full amount of its requested fees.
Factor (1)(c): Deterrence of future litigants’ good-faith positions The county argues that awarding the full amount of its requested fees would not deter future litigants from taking good-faith positions, because Plaintiff took his position despite having been informed by the court, orally and in writing, on several occasions beginning with the initial case management conference on July 22, 2024, of his burden of proof and the evidence he
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney’s professional relationship with the client.
(g) The experience, reputation and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
(i) Whether the attorney performed the services on a pro bono basis or the award of attorney fees otherwise promotes access to justice.
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 9 of 15 would need to present to satisfy his burden. (See Inv’s Br at 6; Dismissal Order at 5.) The court agrees with the county that this factor weighs strongly in favor of awarding the county the full amount of its requested fees.
Factor (1)(d): Deterrence of future litigants’ meritless positions For the same reasons as under Factor (1)(c), the county argues that awarding the full amount of its requested fees would deter future litigants from taking meritless positions. (See Inv’s Br at 7-8.) In addition, the county points out that Plaintiff refused to allow the county to inspect the property, claiming a violation of his right to privacy, until the court warned, based on settled law, that continued refusal could result in dismissal. (See id.) See Salisbury v. Dept. of Rev., 24 OTR 497, 510-13 (2021). The court agrees with the county that this factor weighs strongly in favor of awarding the county the full amount of its requested fees.
Factor (1)(e): Objective reasonableness of parties and diligence of parties and attorneys during the litigation.
The county argues that it and its counsel acted diligently and reasonably at every stage.
(Inv’s Br at 9.) Plaintiff does not argue otherwise, and the court has no basis to disagree with the county. As to Plaintiff’s conduct, the court reiterates that Plaintiff’s entire claim was objectively unreasonable, and the court finds that his persistence with that claim in the face of warnings from the court weighs strongly in favor of awarding the county the full amount of its requested fees.
Factor (1)(f): Objective reasonableness and diligence of parties in pursuing settlement The court finds this factor neutral as to the amount of attorney fees to award, because the parties never engaged in settlement discussions. (See Inv’s Br at 10-11.)
Factor (1)(g): Prevailing party fee awarded under ORS 20.190 (not applicable to Tax Court)
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This factor is neutral as to the amount of attorney fees to award, because the Tax Court is not included in the application of ORS 20.190.
Factor (1)(h): Other appropriate factors The county’s request is limited to time and charges incurred after November 23, 2025, when Plaintiff filed his Third Amended Complaint. (See Inv’s Stmt, Ex 1.) It thus omits all charges for the first 18 months of litigation, which commenced May 1, 2024. (See Ptf’s Compl.) Furthermore, the county also states, and Plaintiff does not dispute, that the county’s
“billing entries in [the statement submitted to the court] reflect only a portion of counsel’s work on this litigation, limited to tasks related to the County’s motion to compel appraisal, Plaintiff’s motions for sanctions and protective order, Plaintiff’s motion to show cause, Plaintiff’s motion for judgment on the pleadings, Plaintiff’s motion to compel discovery, the County’s motion to dismiss for failure to prosecute, trial preparation work, and work related to the County’s motion for attorneys’ fees and costs, and do not capture the entirety of time and effort expended. The majority of the billing entries have been omitted [from the statement submitted to the court] to avoid a punitive result * * *.”
(Inv’s Stmt at 2.) The court finds that the county has taken a conservative approach to its attorney fee request, and that this factor weighs in favor of awarding the full amount requested.
Factor (2)(a): Time and labor required; novelty and difficulty of questions; skill required The county argues that this factor weighs in favor of awarding the county the full amount of its attorney fee request, not because the valuation issue was novel or difficult, but because of the number of motions and letters of Plaintiff to which the county was required to respond. (Inv’s Br at 11-12.) However, the county has represented that its request for attorney fees is limited to time spent responding to a subset of those motions and letters, and under Factor (1)(h) the court has found that the county’s forbearance weighs in favor of awarding the full amount actually requested. The court declines to add further weight in favor of the county by taking into
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 11 of 15 account the fees that the county has chosen to forgo. The court finds that this factor is neutral as to the amount of attorney fees to award.
Factor (2)(b): Likelihood of preclusion of other work, if apparent to client.
The county represents that its engagement in this matter reduced its law firm’s availability for other work, and that the “scope and intensity of Plaintiff’s filings and communications required sustained and often immediate attention.” (Inv’s Br at 12.) Plaintiff does not dispute the accuracy of this statement. The county’s present counsel took on this matter after litigation had been pending nearly a year. (See Inv’s Notice of Substitution of Counsel, Apr 14, 2025.) By that time, Plaintiff had unsuccessfully: moved for a default order; objected to the county’s intervention as a party; moved for sanctions; and sought to disqualify the judge, among other filings. These facts support a conclusion that it was objectively “apparent” to the county, as client, that new counsel would need to be prepared to respond similarly, and that fees would be set to account for that. The court finds that this factor weighs in favor of awarding the county the full amount of its requested fees.
Factor (2)(c): Customary fee for similar services in the locality The county has submitted the Oregon State Bar Economic Survey for 2022, which shows that the rates charged to the county are comparable to or below the average and mean survey rates. (See Inv’s Br at 13.) The court finds that this factor weighs in favor of awarding the county the full amount of its requested fees.
Factor (2)(d): Amount in controversy; results obtained The county acknowledges that the amount in controversy, measured as the tax savings sought by Plaintiff, is “relatively small, which modestly limits the weight of this factor.” (Inv’s Br at 13.) However, the assessor has a statutory duty to assess the property and to record on the
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 12 of 15 roll the RMV, which is a component of the assessed value on which the tax attributed to each property is calculated. See ORS 308.205; ORS 308.215; ORS 308.232; ORS 308.146(2). The court finds that this factor is neutral as to the amount of attorney fees to award.
Factor (2)(e): Time limitations imposed by client or circumstances The county argues that this factor weighs in favor of awarding the full amount of its request because counsel was required to act on short notice in order to respond to motions and to meet other litigation deadlines. (See Inv’s Br at 13.) The court agrees, as the case had been pending nearly a year when current counsel were engaged; therefore, it was reasonably foreseeable to the county that trial would soon be set and would be preceded by significant work, limiting counsel’s availability to take on other work. The court finds that this factor weighs in favor of awarding the county the full amount of its requested fees.
Factor (2)(f): Nature and length of attorney-client relationship The county argues that this factor is neutral as to the amount of attorney fees to award.
(See Inv’s Br at 14.) Finding no basis to conclude otherwise, the court agrees.
Factor (2)(g): Attorney experience, reputation, ability The county’s description of the experience, reputation, and ability of its counsel shows them to be well qualified for engagement in this matter. (See Inv’s Br at 14-15.) Finding no basis to conclude otherwise, the court agrees. The court finds that this factor weighs in favor of awarding the county the full amount of its requested fees.
Factor (2)(h): Fixed or contingent fee Counsel charged the county on an hourly basis, with no contingent fee. The county argues that this factor weighs in favor of awarding the county the full amount of its requested
ORDER ON DEFENDANT-INTERVENOR’S STATEMENT FOR ATTORNEY FEES, COSTS AND DISBURSEMENTS AND PENALTY TC 5465 Page 13 of 15 fees because the fees sought reflect the actual time expended rather than a contingent recovery. (See Inv’s Br at 15.) The court agrees.
Factor (2)(i): Access to justice The county acknowledges that it did not perform its service pro bono, and it makes no argument that a fee award would otherwise promote access to justice. (See Inv’s Br at 15.) The court finds that this factor is neutral as to the amount of attorney fees to award.
Conclusion as to amount of attorney fees to award.
All factors under ORS 20.075(1) and (2) either weigh in favor of awarding the county the full amount of attorney fees requested, or are neutral. No factors weigh against awarding the full amount. The court will award the entire amount requested: $15,395.
C. What amount, if any, of penalty under ORS 305.437 should the court award?
As with an award of attorney fees under ORS 20.105(1), this court is required to award a penalty to Defendant Department of Revenue if the court finds that the non-prevailing party had no “objectively reasonable basis” for asserting a claim, defense, or argument. ORS 305.437(1) (court “shall” award penalty if statutory criteria satisfied). 11 The criteria to determine whether an objectively reasonable basis exists are the same as those applicable to ORS 20.105(1). See
11 ORS 305.437 provides:
“(1) In any case arising under the tax laws of this state or under any law administered by the Department of Revenue, whenever it appears to the Oregon Tax Court that proceedings before it have been instituted or maintained by a taxpayer primarily for delay or that the taxpayer’s position in such proceeding is frivolous or groundless, a penalty in an amount not to exceed $5,000 shall be awarded to the Department of Revenue by the Oregon Tax Court in its judgment. The penalty so awarded shall be paid within 10 days after the judgment becomes final. If the penalty remains unpaid, the department may collect the amount awarded in the same manner as income taxes are collected under ORS 314.430.
“(2) As used in this section:
“(a) A taxpayer’s position is “frivolous” if there was no objectively reasonable basis for asserting the position.
“(b) “Position” means any claim, defense or argument asserted by a taxpayer without regard to any other claim, defense or argument asserted by the taxpayer.”
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Linstrom III v. Dept. of Rev., 25 OTR 527, 543 (2024). The amount to award, not exceeding $5,000, is within the court’s discretion. See id. In this case, the court awards a penalty of $4,000, noting that Plaintiff persisted in his objectively unreasonable position despite contrary authority expressly referred to by the court on multiple occasions. See Dismissal Order at 5-9, 11 (recounting communications with Plaintiff); cf. Jimenez v. Dept. of Rev., 24 OTR 618, 626 (2022) (awarding penalty of $4,000 where taxpayers took position previously determined objectively unreasonable in published decisions), aff’d 370 Or 543, 522 P3d 543, 52-53 (2022); Routledge v. Dept. of Rev., 24 OTR 103, 124-25 (2020) (same).
D. Is the county entitled to its costs and disbursements?
An award of costs and disbursements is likewise mandatory (“shall be allowed”) if the criteria under TCR 68 are satisfied. TCR 68 B. Plaintiff’s objection makes no reference to the county’s request totaling $60.88 and consisting entirely of postage charges. (See Ptf’s Opposition; Inv’s Stmt, Ex 2.) The court will allow the award. Now, therefore, IT IS ORDERED that pursuant to ORS 20.105(1), Defendant-Intervenor’s request for attorney fees is granted in the full amount of $15,395;
IT IS FURTHER ORDERED that pursuant to TCR 68, Defendant-Intervenor’s costs and disbursements in the amount of $60.80 are allowed; and IT IS FURTHER ORDERED that pursuant to ORS 305.437, a penalty of $4000 is awarded to Defendant Department of Revenue.
Counsel for Defendant-Intervenor are directed to submit a proposed form of judgment.
Dated this 26th day of August, 2026.
Judge
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