State ex rel Schrodt v. Jackson County

A court may use its discretion to award attorney's fees to deter intervenors from taking unreasonable positions on appeal and encouraging compliance with the rules of appellate practice while, at the same time, not discouraging the pursuit of meritorious appeals by intervenors who become involved in mandamus proceedings as a result of local governments' derelictions of duty.

Respondent Gary Schrodt ("Schrodt"), who prevailed in State ex rel Schrodt v. Jackson County, 262 Or App 437, 324 P3d 615 (2014), petitioned the Court for an award of attorney fees and costs and disbursements on appeal under ORS 34.210(2) against appellant Harold Hardesty ("Hardesty"). That statute authorizes a discretionary award of attorney fees in mandamus proceedings, including proceedings--such as the instant case--to compel local governments to act on land use applications. The petition arose out of an appeal of a trial court judgment granting mandamus relief to Schrodt under ORS 215.429, requiring Jackson County to approve Schrodt's land use application. Hardesty, who was Schrodt's neighbor and intervened at the trial court level, brought the appeal; the county did not participate. Where, as here, the party against whom fees are sought was an intervenor in the proceeding, the Court has generally concluded that an award of fees is outside the permissible range of a court's discretion, "absent some finding of 'meritlessness or unreasonableness' on the part of the intervenor." Four out of five assignments of error raised by Hardesty on appeal were not objectively reasonable under the circumstances. The Court settled on a portion of Schrodt's attorney's fees to be paid by Hardesty, so as to deterr intervenors from taking unreasonable positions on appeal and encouraging compliance with the rules of appellate practice while, at the same time, not discouraging the pursuit of meritorious appeals by intervenors who become involved in mandamus proceedings as a result of local governments' derelictions of duty. Petition for attorney fees and costs and disbursements allowed in the amount of $9,630.80 in fees and $307.10 in costs.