Comcast Corp. V v. Dept. of Rev. (TC 4909) ( 2018 )

8 March 29, 2018 No. 2
IN THE OREGON TAX COURT
REGULAR DIVISION
COMCAST CORPORATION,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
Defendant.
(TC 4909)
During litigation of this matter on remand, at the hearing on the scope of
remand, the court expressed profound concern regarding the due process implica-
tions of the arguments made by Defendant (the department) and invited Plaintiff
(taxpayer) to file a request for attorney fees. Taxpayer filed its request after that
invitation. The department objected on several grounds, including that attorney
fees can only be awarded to a party that prevails on the merits of the case, not a
procedural matter within that case. Denying taxpayer’s request, the court ruled
that it was not authorized to award attorney fees incurred for litigating the dis-
pute on the scope of remand regarding whether taxpayer’s discrimination claims
were still before the court because earlier the court did not find in favor of tax-
payer on the merits of those claims.
Submitted on Plaintiff’s Amended Request for an Award
of Attorney Fees and Defendant’s objection.
Cynthia M. Fraser, Garvey Schubert Barer PC, Portland,
filed the brief for Plaintiff Comcast Corporation (taxpayer).
Marilyn J. Harbur, Senior Assistant Attorney General,
Department of Justice, Salem, filed the objection for
Defendant Department of Revenue (the department).
Decision rendered March 29, 2018.
HENRY C. BREITHAUPT, Senior Judge.
I. INTRODUCTION
This matter is before the court on a request for
attorney fees filed by Plaintiff Comcast Corporation (tax-
payer). Defendant Department of Revenue (the department)
objects.
II. FACTS AND PROCEDURAL HISTORY
The underlying case concerns the propriety of cer-
tain actions of the department with respect to the central
Cite as 23 OTR 8 (2018) 9
assessment of taxpayer beginning with the tax year 2009-10.
That litigation began in 2009 with taxpayer filing a com-
plaint claiming (1) taxpayer is not subject to central assess-
ment, (2) the department violated the federal Internet
Tax Freedom Act, (3) the department violated the unifor-
mity and equalization clauses of the Oregon Constitution,
(4) the department violated the equal protection clause of
the United States Constitution, and (5) the department vio-
lated Measure 50 and the statutes implementing Measure
50 by determining a maximum assessed value (MAV) that
was too high.1
In this order, claims 2 through 4 are collectively
referred to as the discrimination claims. Claim 5 is referred
to as the MAV claim.
The litigation in this case has been substantial. For a
complete history, please see, in chronological order, Comcast
Corp. v. Dept. of Rev., 20 OTR 319 (2011) (determining tax-
payer is not subject to central assessment); Comcast Corp. v.
Dept. of Rev., 356 Or 282, 337 P3d 768 (2014) (reversing and
remanding); Comcast Corp. II v. Dept. of Rev. (TC 4909), 22
OTR 64 (2015) (Order on Scope of Remand); Comcast Corp. III
v. Dept. of Rev. (TC 4909), 22 OTR 233 (2016) (Order on New
Property Exception to Measure 50); Comcast Corp. IV v.
Dept. of Rev. (TC 4909), 22 OTR 442 (2017) (determining dis-
crimination claims and final MAV calculation).
The attorney fees request before the court is based
on arguments of the department as to the scope of remand
after the court’s first decision was reversed and remanded
by the Oregon Supreme Court. To give context to dispute
regarding the scope of remand (referred to as the remand
dispute), the court provides a brief procedural history lead-
ing up to that dispute.
After a trial, the court decided that some services
provided by taxpayer qualify as communication services as
defined in ORS 308.505(3).2 Comcast Corp., 20 OTR at 333-35.
1
Taxpayer subsequently amended its complaint to add claims under collat-
eral estoppel and res judicata. However, taxpayer abandoned those claims on
remand.
2
The court’s references to the Oregon Revised Statutes (ORS) are to the
2009 edition.
10 Comcast Corp. V v. Dept. of Rev. (TC 4909)
That decision would have subjected the property used to
provide such services to central assessment. ORS 308.515
(1)(h). However, the court also decided that the primary use
of that property was to provide cable television, which the
court decided was not a communication service. Comcast
Corp., 20 OTR at 335-36. Therefore, the court decided that
taxpayer’s property was not statutorily subject to central
assessment, which resolved taxpayer’s first claim for relief
in its favor. Id. at 337. The court accordingly stated that it
was “unnecessary to, and the court does not, address the
other challenges made by Comcast to the actions of the
department.” Id.
The court subsequently entered a judgment to that
effect. Both parties appealed from that judgment for various
reasons. The Supreme Court reversed, and held that tax-
payer was statutorily subject to central assessment. Comcast
Corp., 356 Or at 332-33. That ruling made it unnecessary
for the Supreme Court to consider this court’s decision of the
primary use of the taxpayer’s property. Id. at 334.
The Supreme Court could have concluded its opin-
ion there, having resolved all issues decided by the court.
However, the department asked the Supreme Court to rule
on the MAV claim, arguing it was purely a question of law.
See id. The Supreme Court declined, stating that the MAV
claim “was moot under the Tax Court’s resolution of the
case, but is not moot under ours.” Id. The Supreme Court
further stated:
“Regardless of whether the department is correct in char-
acterizing the issue as purely one of law, we decline the
department’s invitation. The issue entails an intricate
question of tax law, one that involves assessment proce-
dures and practices that the Tax Court deals with fre-
quently. The statutes that provide for tax cases to be
resolved first by the Tax Court, before coming to this court
on appeal, implicitly recognize the value to this court of the
Tax Court’s resolution of tax disputes in the first instance.
The MAV issue that the parties dispute is one that is appro-
priately resolved first by the Tax Court.
“The decision of the Tax Court is reversed, and the case
is remanded to that court for further proceedings.”
Id. at 334-35.
Cite as 23 OTR 8 (2018) 11
On remand, the department argued that the only
issue remaining for the court to decide was the MAV of the
property. The department argued that, by omitting any
mention of taxpayer’s discrimination claims, the Supreme
Court did not remand anything other than the MAV claim
to this court.
The court rejected the department’s argument, and
determined that all of taxpayer’s claims—except taxpayer’s
claim that it is not statutorily subject to central assessment,
which was determined with finality by the Supreme Court—
were remanded back to the court.3 Comcast Corp. II, 22 OTR
at 67.
At the hearing on the scope of remand, the court
expressed profound concern regarding the due process
implications of the arguments made by the department and
invited taxpayer to file a request for attorney fees. Taxpayer
filed this request after that invitation. The department
objected on several grounds, including that attorney fees
can only be awarded to a party that prevails on the mer-
its of the case, not a procedural matter within that case.
Taxpayer did not file a response to those objections, even
though responses are contemplated by Tax Court Rule
(TCR) 68 C(2)(c).
3
The department made a similar argument to the Supreme Court in the
similar case of DIRECTV, Inc. v. Dept. of Rev., 360 Or 21, 25, 377 P3d 568 (2016),
when it asked the Court to enter an appellate judgment and reverse this court’s
decision without remand for further proceedings. The Supreme Court rejected
the department’s argument, noting:
“The department misunderstands how the cited statute operates in cir-
cumstances like these. When the Tax Court decided the threshold summary
judgment issue regarding the applicability of ORS 308.515(1) in DIRECTV’s
favor and entered a general judgment based on that decision, it implicitly
determined that DIRECTV’s remaining arguments were moot. The reversal
of the Tax Court’s general judgment reopens those arguments for further con-
sideration. Our decision in Comcast to remand for consideration of the taxpay-
er’s Measure 50 argument, after reversing the general judgment for the tax-
payer based on the meaning of ‘data transmission services,’ is a case in point.
356 Or [282, 334, 337 P3d 768 (2014)] (‘That argument presents an issue that
was moot under the Tax Court’s resolution of the case, but is not moot under
ours.’)[.]”
Id. at 25 n 1. Although the Supreme Court only addressed the MAV claim in the
foregoing footnote, nothing in the court’s analysis limits its application to the
MAV claim because the discrimination claims were also rendered moot by this
court’s initial decision.
12 Comcast Corp. V v. Dept. of Rev. (TC 4909)
The case has now concluded, with the court having
found in favor of taxpayer on the MAV claim, which was
not the subject of the remand dispute, and the court having
not found in favor of taxpayer on the discrimination claims,
which were the subject of the remand dispute. See Comcast
Corp. IV, 22 OTR 442; see also Comcast Corp. III, 22 OTR
233 (detailing principles for deciding MAV claim). After the
conclusion of this case, the court held a case management
conference. During that conference, counsel for both par-
ties indicated that they had no further briefing to offer to
the court. Taxpayer has not requested attorney fees on any
other basis than the remand dispute. With that background,
the court now turns to taxpayer’s request.
III. ISSUE
The issue is whether taxpayer is entitled to attor-
ney fees it incurred for litigating the remand dispute.
IV. ANALYSIS
Generally, the court may not award attorney fees
unless it is authorized to do so by statute. See Dept. of Rev. v.
Rakocy, 15 OTR 389, 390 (2001) (citing Mattiza v. Foster, 311
Or 1, 4, 803 P2d 723 (1990); describing the “American rule”
of generally not awarding attorney fees to the prevailing
party). There are at least two statutes and two court rules
that provide for an award of attorney fees in the Oregon
Tax Court. See ORS 20.105; ORS 305.490; TCR 17; TCR
46.4 Taxpayer made its request for attorney fees under ORS
305.490(4)(a). That statute provides:
“If, in any proceeding before the tax court judge involv-
ing ad valorem property taxation, exemptions, special
assessments or omitted property, the court finds in favor of
4
Tax Court Rules 17 and 46 do not independently have the force of statute.
They are, however, modeled on and materially similar to Oregon Rules of Civil
Procedure 17 and 46, which do have the force of statute. See ORS 1.735 (providing
that the Council on Court Procedures shall promulgate rules on procedure, which
become effective after legislative review). The court is statutorily directed to pro-
mulgate rules of practice and procedure that “conform, as far as practical to the
rules of equity practice and procedure in this state.” ORS 305.425(3). Therefore,
the court has statutory authority to enact and apply TCR 17 and 46 with respect
to an award of attorney fees.
Cite as 23 OTR 8 (2018) 13
the taxpayer, the court may allow the taxpayer, in addition
to costs and disbursements, the following:
“(A) Reasonable attorney fees for the proceeding under
this subsection and for the prior proceeding in the matter,
if any, before the magistrate; and
“(B) Reasonable expenses as determined by the court.
Expenses include fees of experts incurred by the individual
taxpayer in preparing for and conducting the proceeding
before the tax court judge and the prior proceeding in the
matter, if any, before the magistrate.”
If the court determines that it is authorized by ORS
305.490(4)(a) to award attorney fees, it then considers the
factors listed in ORS 20.075 to determine the extent of the
award. Preble v. Dept. of Rev., 331 Or 599, 602, 19 P3d 335
(2001).
The court must first determine whether it is autho-
rized to award attorney fees. The court is authorized to
award attorney fees to a taxpayer if it finds in favor of that
taxpayer in a “proceeding.” ORS 305.490(4)(a). Here, the
court found in favor of taxpayer on the remand dispute by
determining that taxpayer’s discrimination claims were still
before the court. The court did not, however, find in favor of
taxpayer on the merits of those discrimination claims. The
court did find in favor of taxpayer on the merits of the MAV
claim.
The primary question is whether the remand dis-
pute is a “proceeding” for purposes of ORS 305.490(4)(a). If
it is not, then the next question is whether taxpayer can
recover fees incurred for litigating the remand dispute on
the basis of the court finding in favor of taxpayer on the
MAV claim.
The answer to these questions requires the court to
ascertain the meaning of the term “proceeding.” That term
is not defined by statute. Therefore, the court must ana-
lyze the text, context, and legislative history to ascertain
its meaning for purposes of ORS 305.490(4)(a). See State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009).
14 Comcast Corp. V v. Dept. of Rev. (TC 4909)
A. Text
The court looks first to the text of the statute. ORS
305.490(4)(a) provides:
“If, in any proceeding before the tax court judge involv-
ing ad valorem property taxation, exemptions, special
assessments or omitted property, the court finds in favor of
the taxpayer, the court may allow the taxpayer, in addition
to costs and disbursements, [attorney fees and reasonable
expenses.]”
Reviewing only the text of the statue, the court
sees at least three alternative meanings of the term “pro-
ceeding.” First, it could mean a small portion of an overall
case. Under that interpretation, the court would be autho-
rized to award attorney fees here because it found in favor
of taxpayer on the remand dispute. Second, it could mean
a particular claim or defense. Under that interpretation,
the court would not be authorized to award attorney fees
because it did not find in favor of taxpayer on the discrimi-
nation claims.5 Third, it could mean the overall case. Under
that interpretation, the court would be authorized to award
attorney fees because the court found in favor of taxpayer on
the MAV claim.
The court considers dictionary definitions of the
term. Because the context of the term within the stat-
ute indicates that the term “proceeding” is being used to
describe something about the court, the court considers both
Black’s Law Dictionary (Black’s) and Webster’s Third New
International Dictionary (Webster’s).
Black’s provides the following definitions:
“1. The regular and orderly progression of a lawsuit,
including all acts and events between the time of com-
mencement and the entry of judgment. 2. Any procedural
means for seeking redress from a tribunal or agency.
3. An act or step that is part of a larger action. 4. The busi-
ness conducted by a court or other official body; a hearing.
5
Part of the dispute on the scope of remand was whether the court should
reopen the record for the MAV claim. The court did not invite taxpayer to file a
request pertaining to that dispute and taxpayer did not brief its request for attor-
ney fees on that basis. Accordingly, the court does not consider it.
Cite as 23 OTR 8 (2018) 15
5. Bankruptcy. A particular dispute or matter arising
within a pending case—as opposed to the case as a whole.”
Black’s Law Dictionary 1214 (8th ed 2004) (emphasis in original).
The definitions found in Black’s indicate that the term “proceed-
ing” refers to a smaller piece of a case—not the case itself.
Webster’s similarly provides a variety of definitions
for the term “proceeding,” although in a more general sense:
“1: the action of proceeding. 2a: a particular way of doing
or accomplishing something. b: a particular action or course
of action. c: a particular step or series of steps adopted for
doing or accomplishing something. d proceedings pl: doings,
goings-on. e(1) proceedings pl: the course of procedure in a
judicial action or in a suit in litigation : legal action. (2): a
particular action at law or case in litigation. f: a particular
thing done. 3 proceedings pl: an official record or account.”
Webster’s Third New Int’l Dictionary 1807 (unabridged
ed 2002) (textual examples omitted). The definitions in
Webster’s are varied, but definitions e(1) and (2) relate more
specifically to the legal use of the term. Those definitions
indicate that the singular “proceeding” refers to the overall
case or at least a cause of action, but the plural “proceed-
ings” refers to all of the pieces of that case.
The definitions found in Black’s seem to point in a
different direction than the definitions found in Webster’s.
The term “proceeding” could mean a hearing or smaller pro-
cedural matter within the case. Black’s supports this inter-
pretation. However, the term “proceeding” could also mean
the overall case or a cause action. Webster’s supports this
interpretation. Resolution of this interpretive issue requires
considering the context of ORS 305.490(4)(a).
B. Context
As context, the court first considers subparts (A)
and (B) of the relevant statute. ORS 305.490(4)(a)(A) and (B)
provide that the court may award:
“(A) Reasonable attorney fees for the proceeding under
this subsection and for the prior proceeding in the matter,
if any, before the magistrate; and
“(B) Reasonable expenses as determined by the court.
Expenses include fees of experts incurred by the individual
16 Comcast Corp. V v. Dept. of Rev. (TC 4909)
taxpayer in preparing for and conducting the proceeding
before the tax court judge and the prior proceeding in the
matter, if any, before the magistrate.”
The use of the article “the” linked with the singular “proceed-
ing” contemplates one proceeding in the Regular Division of
the court, and one in the Magistrate Division. The use of the
singular “proceeding” suggests that the term relates to the
ultimate resolution of the merits, i.e., the case overall or at
least a cause of action.
ORS 305.490(4)(a) is remarkably similar in struc-
ture to ORS 305.490(3)(a), which provides for attorney fees
in income tax and inheritance or estate tax matters.6 The
Supreme Court has recently stated that ORS 305.490(4)(a)
was based on ORS 305.490(3)(a). Ellison v. Dept. of Rev., 362
Or 148, 165, 404 P3d 933 (2017), adh’d to as modified on
recons, 362 Or 527, 412 P3d 201 (2018). The Supreme Court’s
decision in Ellison provides crucial insight into the interpre-
tation of ORS 305.490(4)(a).7
In Ellison, the Supreme Court analyzed whether
this court had found in favor of the taxpayer for purposes of
ORS 305.490(4)(a). Before this court, the taxpayer had failed
to establish its assertion of real market value for the subject
property but had succeeded in defending against the depart-
ment’s assertion of real market value. Ellison v. Clackamas
County Assessor, 22 OTR 201, 206 (2015). However, taxpayer
6
ORS 305.490(3)(a) provides:
“If, in any proceeding before the tax court judge involving taxes upon or
measured by net income in which an individual taxpayer is a party, or involv-
ing inheritance or taxes, the court grants a refund claimed by the executor
or taxpayer or denies in part or wholly an additional assessment of taxes
claimed by the Department of Revenue to be due from the estate or taxpayer,
the court may allow the taxpayer, in addition to costs and disbursements, the
following:
“(A) Reasonable attorney fees for the proceeding under this subsection
and for the prior proceeding in the matter, if any, before the magistrate; and
“(B) Reasonable expenses as determined by the court. Expenses include
accountant fees and fees of other experts incurred by the executor or indi-
vidual taxpayer in preparing for and conducting the proceeding before the
tax court judge and the prior proceeding in the matter, if any, before the
magistrate.”
7
The Supreme Court analyzed ORS 305.490(4)(a) as in effect on January 1,
2011. Ellison, 362 Or at 152 n 6. The provisions of ORS 305.490(4)(a) (2011) are
identical to the provisions of ORS 305.490(4)(a) (2009).
Cite as 23 OTR 8 (2018) 17
in that case did not secure any affirmative relief, and the
court simply defaulted to the BOPTA value. Id.The department made two arguments before the
Supreme Court. First, the department argued that, for pur-
poses of ORS 305.490(4)(a), the term “in favor of” is equiva-
lent in meaning to the term “prevailing party” used in other
attorney fees statutes. Therefore, and second, the depart-
ment argued that the court only finds “in favor of” a tax-
payer for purposes of ORS 305.490(4)(a) when it does so on
a taxpayer’s affirmative claim for relief. Ellison, 362 Or at
164.
Although finding some support for the department’s
first argument,8 the Supreme Court ultimately rejected the
department’s second argument because existing case law
demonstrated that a court can make a prevailing party
determination or rule in favor of a taxpayer on a success-
ful defense to a claim or counterclaim. Id. at 164-65, quot-
ing Wilkes v. Zurlinden, 328 Or 626, 984 P2d 261 (1999).
The Supreme Court also reviewed the legislative history of
ORS 305.490(4)(a) and determined that it was intended to
operate essentially in parallel with ORS 305.490(3)(a), the
statute providing for fees in income tax cases. Id. at 165.
Both statutes allow the court to award attorney fees to a
taxpayer for arguing for or against certain claims even if no
affirmative relief was obtained by the taxpayer. Id. at 166.
Accordingly, the court can and does award fees on a claim-
by-claim basis, not an overall case basis.9
Although the Supreme Court did not hold that “in
favor of” is equivalent to “prevailing party” for purposes
of determining whether this court is authorized to award
attorney fees, this court finds instructive the statutory guid-
ance for prevailing party determinations in cases with mul-
tiple claims. That guidance is found in ORS 20.077, which
provides, in relevant part:
8
The Supreme Court also cautioned that it had previously questioned the
argument that “in favor of” means “prevailing party.” Ellison, 362 Or at 164 n 18.
9
If attorney fees under ORS 305.490(4)(a) were to be awarded only to a party
that prevailed in the overall case, no attorney fees could be awarded in Ellison
because neither party prevailed on its claim for affirmative relief. The Supreme
Court remanded that case back to this court to address a separate issue, but did
not hold that attorney fees could not be awarded on remand.
18 Comcast Corp. V v. Dept. of Rev. (TC 4909)
“(1) In any action or suit in which one or more claims
are asserted for which an award of attorney fees is either
authorized or required, the prevailing party on each claim
shall be determined as provided in this section. The provi-
sions of this section apply to all proceedings in the action or
suit, including arbitration, trial and appeal.
“(2) For the purposes of making an award of attor-
ney fees on a claim, the prevailing party is the party who
receives a favorable judgment or arbitration award on the
claim. If more than one claim is made in an action or suit
for which an award of attorney fees is either authorized or
required, the court or arbitrator shall:
“(a) Identify each party that prevails on a claim for
which attorney fees could be awarded;
“(b) Decide whether to award attorney fees on claims
for which the court or arbitrator is authorized to award
attorney fees, and the amount of the award;
“(c) Decide the amount of the award of attorney fees
on claims for which the court or arbitrator is required to
award attorney fees; and
“(d) Enter a judgment that complies with the require-
ments of ORS 18.038 and 18.042.”
In harmony with the Supreme Court’s opinion in
Ellison, ORS 20.077 provides that a court must determine
on a claim-by-claim basis whether an award of attorney fees
is authorized or required. This is a strong basis upon which
to determine that the legislature intended the term “pro-
ceeding” to be considered as to each claim for affirmative
relief. If that is the intended meaning, the question arises:
Why did the legislature use “proceeding” instead of “claim”?
The answer relates to the unique stature of the Oregon Tax
Court.
The Oregon Tax Court has two divisions, the
Regular Division and the Magistrate Division. ORS 305.405;
ORS 305.498. With few exceptions, parties must file a com-
plaint first in the Magistrate Division, and can then appeal
the decision of the magistrate to the Regular Division. ORS
305.501.
The term “proceeding” more accurately encapsu-
lates the idea that a party might litigate its claim or claims
Cite as 23 OTR 8 (2018) 19
once in the Magistrate Division and again in the Regular
Division. This concept also explains the distinction between
a “proceeding” and a “matter” as used in ORS 305.490(4)(a).
As explained previously by the court, “[T]here is one matter
in the court, not one proceeding.” Allen v. Dept. of Rev., 17
OTR 427, 431 (2004) (emphases omitted).
Under the Supreme Court’s opinion in Ellison, the
foregoing context, and the treatment of attorney fees for mul-
tiple claims in ORS 20.077, the court tentatively concludes
that the term “proceeding” in ORS 305.490(4)(a) refers to
litigation of the substantive claim or claims (or defenses to
the taxing authority’s claim or claims) for which taxpayer
is requesting attorney fees for litigation in either division of
the court.
C. Legislative History
To the extent that the legislative history addresses
the issue in this case, it supports the court’s tentative conclu-
sion.10 An analysis of the bill enacting ORS 305.490(3)(a) con-
tained the following subject line: “Permits reimbursement
of attorney fees of taxpayers on certain claims.” Analysis of
Proposed Legislation, 1971 HB 1002 (Mar 26, 1971) (empha-
sis added). Testimony in support of ORS 305.490(4)(a) dis-
cussed getting attorney fees for a “case.” Testimony, Senate
Committee on Judiciary, SB 130, Mar 7, 2001 (statement of
Larry Tapanen).
At the very least, the legislative history confirms
that ORS 305.490(4)(a) was not enacted with the intent to
authorize the court to award attorney fees for prevailing
on small procedural disputes within a case. That said, the
court does not place significant emphasis on the legislative
history because it is evident that the supporters of ORS
305.490(4)(a) did not envision the situation in this case. In
addition, the text and context—the best indication of legis-
lative intent—strongly supports a conclusion that the term
“proceeding” refers to litigation of the claim (or defense to a
claim) for which taxpayer is requesting attorney fees.
10
The court reviewed the legislative history of ORS 305.490(3)(a) and (4)(a).
The tenor of the discussions was more general than the specific question raised
in this case.
20 Comcast Corp. V v. Dept. of Rev. (TC 4909)
D. Concluding Analysis
The court concludes that the term “proceeding”
refers to litigation resolving a particular substantive claim
(or defense to a claim). Recall that the court identified
two questions that must be resolved. The first question is
whether the remand dispute is a “proceeding” for purposes
of ORS 305.490(4)(a). The remand dispute was a procedural
matter concerning which claims were before the court. It is
not a “proceeding” for purposes of ORS 305.490(4)(a).
The court turns now to the second question, which
is whether the court is authorized to award attorney fees
incurred by taxpayer litigating the remand dispute on the
basis that the court found in favor of taxpayer on the merits
of its MAV claim (which is a “proceeding” for purposes of
ORS 305.490(4)(a)). The answer to this question is contained
in ORS 305.490(4)(a)(A), which limits the court’s authority
to awarding “attorney fees for the proceeding” in which the
court found in favor of taxpayer. (Emphasis added.) The
remand dispute, as is relevant here, concerned the discrim-
ination claims, not the MAV claim.11 Accordingly, the court
is not authorized to award taxpayer fees for litigating the
remand dispute. Because the court is not authorized to
award taxpayer attorney fees for the remand dispute, the
court denies taxpayer’s request.
V. CONCLUSION
The court is not authorized to award attorney fees
incurred for litigating the dispute on the scope of remand
regarding whether taxpayer’s discrimination claims were
11
That is not to say that an award of attorney fees can never include amounts
arguably attributable to claims (or defenses to claims) upon which the request-
ing party did not prevail. It is established that where “there are common issues
among the claims, it may not be necessary to apportion the fees between the claim
on which the party succeeded and those on which the party did not.” Freedland
v. Trebes, 162 Or App 374, 378-79, 986 P2d 630 (1999) (citing Estate of Wesley E.
Smith v. Ware, 307 Or 478, 480-82, 769 P2d 773 (1989)). “In that circumstance,
the court might conclude that it would have taken roughly the same amount of
time to litigate a case in which the successful claim was the sole claim as it
took to litigate the case in which it was one among several claims * * *.” Id.; see
also Fadel v. El-Tobgy, 245 Or App 696, 709-10, 264 P3d 150 (2011). In this case,
however, the issues addressed in the remand dispute do not relate to the MAV
claim.
Cite as 23 OTR 8 (2018) 21
still before the court because the court did not find in favor
of taxpayer on the merits of those claims. Now, therefore,
IT IS ORDERED that Plaintiff’s request for attor-
ney fees is denied.