Stewart v. City of Salem

247 P.3d 763, 240 Or. App. 466
CourtCourt of Appeals of Oregon
DecidedJanuary 26, 2011
Docket2009009 A146479
StatusPublished

This text of 247 P.3d 763 (Stewart v. City of Salem) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewart v. City of Salem, 247 P.3d 763, 240 Or. App. 466 (Or. Ct. App. 2011).

Opinion

247 P.3d 763 (2011)
240 Or. App. 466

Mel STEWART, Petitioner,
v.
CITY OF SALEM, Respondent.

2009009; A146479.

Court of Appeals of Oregon.

Decided January 26, 2011.
Argued and Submitted October 27, 2010.

John W. Schonkwiler argued the cause for petitioner. On the brief were William F. Hoelscher and Hoelscher & Associates, P.C.

Sean T. Brady, Deputy City Attorney, argued the cause and filed the brief for respondent.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore.

SERCOMBE, J.

Petitioner seeks judicial review of a Land Use Board of Appeals ("LUBA" or "the board") order denying him an award of attorney fees after he obtained a favorable decision against the City of Salem on his underlying application to partition his property. Petitioner acted pro se at all relevant times during the proceedings before the board, although he received advice and assistance from an attorney, Hoelscher. Petitioner argues that he is entitled to attorney fees under ORS 197.835(10)(b), which requires the board to "award attorney fees" to a land use applicant where the board reverses a local government decision denying the application. We conclude that petitioner is entitled to attorney fees under ORS 197.835(10)(b) and, therefore, reverse the board's order.

Petitioner applied to the City of Salem to partition his residential property. The city denied the application, and petitioner appealed to LUBA. The board reversed the city's decision and ordered it to approve petitioner's partition application. We affirmed the board's determination on review, Stewart v. City of Salem, 231 Or.App. 356, 219 P.3d 46 (2009), rev. den., 348 Or. 415, 233 P.3d 818 (2010), and petitioner moved for attorney *764 fees incurred before us. We denied petitioner's motion.

Petitioner also moved the board for attorney fees pursuant to ORS 197.835(10)(b), arguing that he was entitled to the reasonable value of legal services rendered by Hoelscher during the proceedings before the board and the Court of Appeals. ORS 197.835(10)(b) provides that, "[i]f the board does reverse the decision and orders the local government to grant approval of the application, the board shall award attorney fees to the applicant and against the local government."

LUBA denied petitioner's request. In its order, the board reasoned that petitioner was not entitled to attorney fees "because [he] was not represented by an attorney before [the board]." As the board noted, "Petitioner represented himself, filed all his own pleadings, engaged in direct negotiations with the city's attorney, conducted oral argument, and performed all the activities that an attorney would have performed if petitioner had been represented by an attorney before [the board]."[1] But the board reasoned that, "[w]hile petitioner may have or had an attorney-client relationship with Hoelscher, that relationship did not include Hoelscher's representation of [petitioner] before [the board]." (Emphases in original.)

LUBA did not analyze ORS 197.835(10)(b) in its order denying attorney fees. Instead, it relied on its own "appearance rule," OAR XXX-XXX-XXXX(6), which provides, in part, that "[a]n individual shall either appear on his or her own behalf or be represented by an attorney." From that rule, the board inferred that

"a petitioner [to the board] may not at the same time appear both pro se and be represented by an attorney. Petitioner cites no authority * * * suggesting that a party representing themselves pro se before [the board] may recover attorney fees for legal assistance provided by an attorney to that party but who does not represent that party before [the board]."

In other words, LUBA concluded that, unless an attorney enters an appearance on behalf of a party, the attorney does not "represent" the party. Absent that "representation," the board maintained, the party cannot recover attorney fees. Thus, because Hoelscher did not appear before LUBA on behalf of petitioner, the board concluded that petitioner could not recover attorney fees.

On review, petitioner assigns error to the board's denial of attorney fees incurred during proceedings before the board; he argues that the plain meaning of "attorney fees" espoused by the Supreme Court in Colby v. Gunson, 349 Or. 1, 238 P.3d 374 (2010)—a decision issued after the board's order in this case—applies to the circumstances here.[2] The court in Colby held that "`attorney fees,' as used in the context of attorney fee awards, means the reasonable value of services performed by an attorney." 349 Or. at 6, 238 P.3d 374. Petitioner argues that that definition does not require full representation—i.e., an appearance by an attorney on behalf of a party as an attorney of record—as a prerequisite to recovery of fees. Rather, petitioner contends that he is entitled to the reasonable value of legal services he received even though he appeared pro se before the board. The city responds that Colby is inapposite and "merely held that when an attorney of record represents himself that [he] is entitled to attorney fees" under the statute in that case. The city thus asserts that a party is entitled to attorney *765 fees under ORS 197.835(10)(b) only if an attorney appears before the board as an attorney of record and provides full representation in that proceeding. We conclude that the value of the services rendered to petitioner by Hoelscher fit within the plain meaning of "attorney fees" under ORS 197.835(10)(b). The board therefore erred in denying attorney fees to petitioner.

The term "attorney fees" is not defined in ORS 197.835(10)(b). When construing a statute, we give words their plain and ordinary meaning unless it is clear that the legislature intended a different meaning. Colby, 349 Or. at 5, 238 P.3d 374; Anderson v. Wheeler, 214 Or.App. 318, 322, 164 P.3d 1194 (2007). That plain meaning was construed by the Supreme Court—albeit in the context of a different statute—in Colby. See Colby, 349 Or. at 3-9, 238 P.3d 374.

In Colby, the plaintiff, an attorney, brought suit on his own behalf seeking disclosure of public records.

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Related

Colby v. Gunson
238 P.3d 374 (Oregon Supreme Court, 2010)
Parquit Corporation v. Ross
543 P.2d 1070 (Oregon Supreme Court, 1975)
Stewart v. City of Salem
247 P.3d 763 (Court of Appeals of Oregon, 2011)
Colby v. Gunson
210 P.3d 917 (Court of Appeals of Oregon, 2009)
Stewart v. City of Salem
219 P.3d 46 (Court of Appeals of Oregon, 2009)
Anderson v. Wheeler
164 P.3d 1194 (Court of Appeals of Oregon, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
247 P.3d 763, 240 Or. App. 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-city-of-salem-orctapp-2011.