S054884, Opinion — Comcast of Oregon II, Inc. v. City of Eugene

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Argued and submitted March 5, 2008, at the University of Oregon School of Law,
Eugene, Oregon, decision of Court of Appeals affirmed; judgment of circuit court
reversed, and case remanded to circuit court for further proceedings June 11, 2009

COMCAST OF OREGON II, INC.,
Respondent on Review,
v.
CITY OF EUGENE,
an Oregon municipal corporation,
Petitioner on Review.
(CC 16-03-07308; CA A126445; SC S054884)
209 P3d 800

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CJS, Municipal Corporations § 821.

# En Banc

On review from the Court of Appeals .*

Jerome Lidz, of Harrang Long Gary Rudnick PC, Eugene,
argued the cause and filed the brief for petitioner on review.
With him on the brief were William F. Gary, Sharon A.
Rudnick, and C. Robert Steringer.

Duane A. Bosworth, of Davis Wright Tremaine LLP,
Portland, argued the cause and filed the brief for respondent
on review. With him on the brief was Kevin H. Kono.

Candace A. Haines, McMinnville, filed the brief for
amicus curiae League of Oregon Cities.

Mark S. Rauch, Salem, filed the brief for amicus curiae
City County Insurance Services Trust.

DURHAM, J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

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# DURHAM, J.

In this action, Comcast of Oregon II, Inc. (Comcast)
challenges the validity of two administrative orders that the
city manager of the City of Eugene (city) adopted. The trial
court granted summary judgment for the city. On appeal, the
Court of Appeals reversed and remanded. Comcast of Oregon
II, Inc. v. City of Eugene, 211 Or App 573, 155 P3d 99 (2007).
The Court of Appeals determined, among other things, that
ORS 30.275, which we quote below, did not obligate Comcast
to give a timely notice of its claims to the city before filing this
action. This court granted review to address that question.
Although we rely on different reasoning, we affirm the Court
of Appeals.

The facts are largely undisputed. The city regulates
"work affecting a public way" by, among other things, requir-
ing parties doing such work to obtain a permit. See Eugene
Code (EC) § 7.290(2) (so providing). The city charges a fee for
a permit.1 Two provisions of the Eugene Code address how
the city sets the fees. First, EC § 7.300 provides, in part:

"(1) The fee for a permit required by section 7.290
shall be set by the city manager pursuant to section 2.020 of
this code in an amount sufficient to fully recover all of the
[c]ity's costs related to processing the application for the
permit and inspecting the work during and after comple-
tion of the work."

The second provision, incorporated in EC § 7.300 by reference
is EC § 2.020 (1999),2 which provided, in part:

"(2) In determining the amount of any such fee the city
manager shall consider:

**** * *

"(d) The amounts charged by other comparable provid-
ers * * * [.]"

1 The fee charged is designed to reimburse the city for its expenses in reviewing
construction plans and inspecting the work performed on public streets and side-
walks by the permit holder.

2 Unless otherwise noted, all references to EC § 2.020 are to the 1999 version of
that section, which was in force at all times relevant to this case. Section 2.020 was
amended in 2007, but those amendments are not relevant to the disposition of this
case.

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Before January 2002, the city charged permit fees
for utility work that affected a public way (such as street pav-
ing) on a per-foot basis for the first 1,000 feet; the city
charged no additional fee for a project extending beyond that
length. As a result, the fee charged for a utility permit for a
10,000-foot project was the same as the fee charged for a
1,000-foot project.

Comcast has a franchise from the city to provide
cable services. In late June 2001, Comcast entered into a
written agreement with the city to upgrade Comcast's cable
facilities by June 30, 2003. The city required Comcast to
obtain a permit to perform the upgrade work. The majority of
the upgrade work involved aerial installations (as opposed to
underground installations). The agreement provided that, if
Comcast did not complete the upgrade on time, Comcast was
liable for a $25,000 financial penalty and, potentially, termi-
nation of its franchise.

In fall 2001, the city staff determined that the exist-
ing permit fees were not high enough to recover the city's
costs. They developed a new fee schedule, which (among
other things) removed the 1,000-foot project cap on permit
fees. In developing the new fee schedule, the city staff did not
obtain information about the amounts charged for permit
fees for utility work by other jurisdictions, as required by EC
§ 2.020(2)(d). The staff concluded that, because EC § 7.300(1)
required the permit fees to compensate the city for its costs,
the amounts charged by other jurisdictions were irrelevant.
After a period for public comment, the city manager adopted
the new fee schedule effective on January 30, 2002, as
Administrative Order No. 58-01-18-F (2002 order).3

The 2002 order significantly increased the fees that
Comcast would have to pay for the permits that it needed for
its upgrade project. Comcast previously had estimated the
total permit fees for the upgrade to be about $15,000.
Comcast estimated its fees under the 2002 order to be

3 Comcast has contended that it had no notice that the 2002 order would apply
to aerial installations, because the city had not previously required permits for aer-
ial installations. The city has disputed that, arguing that it had required permits
for aerial installations in the past, including aerial installations by Comcast and its
predecessors. We need not resolve that issue here.

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approximately $360,000. In June 2002, Comcast protested
the increased fees, asserting, among other things, that charg-
ing permit fees for aerial installations violated EC § 7.300.

In response to complaints, the city prepared
an amended fee schedule for permits, for which it gave pub-
lic notice in October 2002. Comcast provided written com-
ments criticizing the proposed amendments to the fee sched-
ule. The city manager adopted the amended fee schedule as
Administrative Order No. 58-02-29-F (2003 order), effective
February 18, 2003. The 2003 order applied only to installa-
tions that were primarily aerial installations. It provided
that the city would charge a permit fee for the first five miles
of a primarily aerial installation at the rates set by the 2002
order, but would reduce the rate charged per foot for dis-
tances beyond five miles. Under protest, Comcast paid the
permit fees under the 2002 and 2003 orders, totaling approx-
imately $375,000.4

In April 2003, Comcast filed this action against the
city in circuit court. The complaint identified three separate
claims: a petition for writ of review, a claim for declaratory
judgment, and a claim for money had and received. The trial
court later dismissed the petition for writ of review, and the
parties present no issues to this court regarding that dis-
missal. The claim for declaratory judgment sought a decla-
ration that the city adopted the 2002 and 2003 orders in vio-
lation of EC § 7.300(1). In the claim for money had and
received, Comcast contended that the city had collected fees
in excess of those permitted by EC § 7.300(1) and that
Comcast was entitled to a refund of those excessive fees.

Both the city and Comcast moved for summary judg-
ment. For its part, the city contended (among other things)
that the declaratory judgment action qualified as a tort claim
under the Oregon Tort Claims Act (OTCA), ORS 30.260 to

\+ The record is not consistent as to the amount that Comcast paid. In its motion
for summary judgment, Comcast calculates the total amount actually paid as
$331,105.10. The motion cites exhibits attached to the declaration of Sanford
Inouye. Those exhibits, however, are not contained in the record submitted to this
court. Furthermore, the declaration of Inouye states that Comcast paid the city
"approximately $375,000 in permit fees associated with [Comcast's] upgrade activ-
ities in 2002 and 2003." For purposes of this opinion, we need not resolve that
discrepancy.

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30.300, and that Comcast had failed to prove that it had
given the notice required by ORS 30.275(2)(b).5 The city did
not assert that argument against Comcast's claim for money
had and received, however. Instead, the city argued that
Comcast could not recover under the "money had and
received" claim because Comcast had paid the permit fees
voluntarily. Finally, the city contended that it validly had
adopted the disputed orders.

Comcast argued that it was entitled to summary
judgment on its declaratory judgment action because the city
had adopted the 2002 and 2003 orders in violation of EC
§ 7.300 and the section that it incorporated, EC § 2.020.
Among other things, Comcast argued that the city's failure to
obtain information about the fees charged for comparable
permits in other jurisdictions meant that the city had
adopted both orders in violation of EC § 2.020(2)(d). As for its
claim for money had and received, Comcast argued that its
payments to the city were not voluntary-that they had been
made under duress and under protest because of the poten-
tial penalties that Comcast would have faced unless it fin-
ished the upgrade by the June 30, 2003, deadline.

In a letter to the parties, the trial court announced
that it would grant summary judgment for the city; however,
in so ruling, the court identified only those arguments by the
city that the court had found unpersuasive:

"The Court has decided to grant the City's Motion for
Summary Judgment. That is based upon reasons other
than the claim that Comcast was not under duress in the
payment of fees. The Court finds that the circumstances did

5 ORS 30.275 provides, in part:

"(1) No action arising from any act or omission of a public body * * * within
the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is
given as required by this section."

ORS 30.275(2)(b) requires that notice of a claim be given "within 180 days after the
alleged loss or injury."

The city argues that Comcast's failure to serve a tort claim notice constitutes a
jurisdictional flaw that deprives this court of authority to proceed. We disagree. As
we explain in this opinion, the tort claim notice requirement in ORS 30.275(1) does
not apply to Comcast's claims, and, therefore, the city's argument raises no defect
in this court's jurisdiction. That answer obviates the need to examine in this case
whether the notice requirement is not only a procedural component but also a juris-
dictional prerequisite.

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amount to duress and that [Comcast] would have been enti-
tled to recover monies paid had it otherwise prevailed. In
addition, the Court does not find sustainable the Defendant
City's claim that [Comcast] failed to abide by the Oregon
Tort Claims Act."

The trial court subsequently entered a general judgment for
the city.

Comcast appealed to the Court of Appeals, contend-
ing that the trial court erred in granting summary judgment
for the city. In response, the city contended that both the
claims for declaratory judgment and for money had and
received were barred by the OTCA because Comcast had
failed to prove that it had given the required OTCA notice. As
to Comcast's claim for money had and received, the city also
contended that Comcast's payments had not been made
under duress, but had been voluntary.

The Court of Appeals reversed and remanded the
decision of the trial court. First, the court rejected the city's
arguments that the OTCA barred the claims for declaratory
judgment and for money had and received. Comcast, 211 Or
App at 580-82. Second, the court concluded that the 2002 and
2003 orders had not been validly enacted because the city
had violated EC § 2.020 by failing to consider the amounts
charged for similar permits in other jurisdictions. Id. at 582-
85. For that reason, the Court of Appeals concluded that the
trial court should have granted summary judgment for
Comcast on its declaratory judgment claim. Id. at 585. Third,
the court concluded that disputed issues of fact existed
regarding Comcast's claim for money had and received-
specifically, whether the payments had been made under
duress-and, thus, the trial court had erred in granting sum-
mary judgment for the city. Id. at 587-89.

The city petitioned this court for review, but it pres-
ents only a narrow range of issues. The city does not chal-
lenge the Court of Appeals' holding that the 2002 and 2003
orders were adopted in violation of EC § 2.020 or its conclu-
sion that disputed issues of fact existed regarding duress as
to the claim for money had and received. We therefore do not
revisit or discuss those issues further. The only issue pre-
sented by the city on review is whether the OTCA barred the

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claims for declaratory judgment and for money had and
received. In fact, the issue actually presented is narrower
still. Because Comcast filed this action within 180 days of the
adoption of the 2003 order, the city's arguments focus only on
the question whether the OTCA required Comcast to give a
notice of claim regarding its challenge to the 2002 order.

Before the Court of Appeals, the city argued that
Comcast's declaratory judgment and money had and received
claims constituted claims of "tort," as that term is defined in
the OTCA, ORS 30.260(8).6 Addressing the declaratory judg-
ment claim first, the Court of Appeals found it unnecessary to
address the statutory definition of tort at all and concluded
instead that a declaratory judgment claim is not subject to
the OTCA. The court stated:

"We need not decide whether plaintiff's declaratory
judgment claim alleges a tort as that term is defined in ORS
30.260(8). Even if it does, it is not a claim for which notice
must be given under ORS 30.275. As the Supreme Court
explained in Krieger v. Just, 319 Or 328, 337, 876 P2d 754
(1994), notice under ORS 30.275 is required only for claims
'made possible and authorized by' the OTCA, not for previ-
ously existing claims-that is, notice is required only for
claims that were previously barred by sovereign immunity.
See Jensen v. Whitlow, 334 Or 412, 416, 51 P3d 599 (2002)
('In 1967, the legislature passed the Oregon Tort Claims
Act (OTCA), which abrogated, in part, the state's sovereign
immunity.')."

Id. at 581. Because sovereign immunity had not barred
declaratory judgment claims alleging the invalidity of gov-
ernmental enactments, the court concluded, ORS 30.275 did
not require Comcast to give notice of its declaratory judgment
claim. Id.

€ ORS 30.260 provides, in part:

"As used in ORS 30.260 to 30.300, unless the context requires otherwise:

"(8) "Tort' means the breach of a legal duty that is imposed by law, other
than a duty arising from contract or quasi-contract, the breach of which results
in injury to a specific person or persons for which the law provides a civil right
of action for damages or for a protective remedy."

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The city contends that the Court of Appeals misread
Krieger and that the notice provision of ORS 30.275 does not
apply to only claims barred by common-law sovereign immu-
nity. We agree with the city, as we will explain below.

Cities in Oregon never have enjoyed a complete
immunity equal to the state's sovereign immunity. Since its
enactment in 1967, the OTCA has applied to some claims
against public bodies that were not barred by sovereign
immunity. At common law, sovereign immunity applied to
municipal corporations, such as the city, only when they were
engaged in "governmental functions"; municipal corporations
had no sovereign immunity as to "proprietary functions."
Hale v. Port of Portland, 308 Or 508, 518-19, 783 P2d 506
(1990) (noting that maintenance of roads and streets had
been considered to be proprietary activity, while operation of
a city park had been considered to be governmental). With
the enactment of the OTCA, the legislature effectively abol-
ished the "governmental/proprietary" function distinction,
making both types of claims subject to the limitations con-
tained within the OTCA. See Or Laws 1967, ch 627, § 2 ("Sub-
ject to the limitations of this Act, every public body is liable
for its torts * * * whether arising out of a governmental or
proprietary function."), codified as since amended at ORS
30.265(1) ("Subject to the limitations of ORS 30.260 to
30.300, every public body is subject to action or suit for its
torts * * * whether arising out of a governmental or proprie-
tary function * * *. "); Hale, 308 Or at 523 (OTCA "widened"
class of plaintiffs "by removing the requirement that an
injured party show that the municipal corporation's activity
that led to the injury was a proprietary one"). In short, the
text of ORS 30.265(1) makes the provisions of the OTCA
applicable to some claims that were not barred by common-
law sovereign immunity.

Furthermore, the text of the OTCA notice statute,
ORS 30.275, confirms that notice is required for all claims
that are subject to the OTCA. The notice provision, ORS
30.275, provides, in part:

"(1) No action arising from any act or omission of a
public body or an officer, employee or agent of a public body

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within the scope of ORS 30.260 to 30.300 shall be main-
tained unless notice of claim is given as required by this
section."

ORS 30.275(1). On its face, the statutory text "within the
scope of ORS 30.260 to 30.300" refers to all OTCA tort claims.
As we have noted, the OTCA applies to some claims that
were not barred by common-law sovereign immunity. The
Court of Appeals concluded, however, that this court in
Krieger had interpreted ORS 30.275(1) differently. We turn
to an examination of that case.

In Krieger, the plaintiff had filed an action against
an individual defendant for injuries sustained in an auto
accident in 1988. The defendant contended that, at the time
of the accident, she had been a public employee driving for a
purpose related to her public employment. Consequently, the
defendant claimed, the action against her was subject to the
limitations of the OTCA, as they existed in 1988.7 The issue
before this court was whether the notice provision of the
OTCA, ORS 30.275(1), applied to the action against the
defendant. Specifically, the court in Krieger considered
whether the statutory phrasing, "within the scope of ORS
30.260 to 30.300," included actions against individual defen-
dants that the plaintiff might have chosen to file against a
public body under respondeat superior.

As the Court of Appeals noted, the court in Krieger
equated the statutory phrase, "within the scope of ORS
30.260 to 30.300," with "[claims] made possible and author-
ized by the Oregon Tort Claims Act." 319 Or at 337.8 But, in

7 Since 1988, the legislature has amended the OTCA to make its provisions
applicable to actions against individual public employees. See, e.g., Or Laws 1991,
ch 861, § 1 (amending ORS 30.265 to require that torts committed by public
employees in the course of their employment must be pursued by actions against a
public body and prohibiting actions against such public employees individually).

8 In context, this court stated:

"The phrase 'within the scope of ORS 30.260 to 30.300 [the Oregon Tort
Claims Act],' found in the 1981 amendments (and comprising the 1987 version
that applies to this 1988 claim), is the same phrase that appeared in the 1973
and 1975 versions of the Oregon Tort Claims Act. In those earlier versions, the
phrase clearly modified or explained the kind of 'claim' for 'damages' to which
it applied. That kind of claim, which the phrase modified or explained, was one
made possible and authorized by the Oregon Tort Claims Act, not a previously
existing common-law negligence claim against an individual."

319 Or at 337 (alteration in original; emphasis added).

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the very next paragraph, the opinion in Krieger rephrased
that conclusion; the court equated the statutory phrase with
"claims that are within the Oregon Tort Claims Act." Id.9
When this court referred to claims "made possible and
authorized by" the OTCA, it merely described generally what
the OTCA had done, which was to expose public bodies to
claims in tort that otherwise would have been barred by sov-
ereign immunity.

In Krieger, this court concluded that the phrase
"within the scope of ORS 30.260 to 30.300" embraced all tort
actions against a public body. That phrase did not embrace,
in 1988, tort claims against individual public employees,
even if the plaintiff could have brought an action against the
public body under a theory of respondeat superior.

We therefore conclude that the Court of Appeals mis-
read Krieger when it concluded that the notice provisions of
the OTCA applied to only those OTCA claims that would
have been barred by sovereign immunity at common law. By
its terms, the OTCA expressly applies to claims in "tort,"
ORS 30.260(8), including claims that were not subject to
common-law sovereign immunity, and Krieger did not hold to
the contrary.10

That conclusion, however, does not determine
whether the claims at issue in this case are "tort" claims
within the scope of the OTCA. The city contends that they
are. We consider each claim separately.

9 In that next paragraph, this court stated:

"When the 1981 legislative session enacted a new first sentence to ORS
30.275(1), the legislature retained the modifying phrase 'within the scope of
ORS 30.260 to 30.300 [the Oregon Tort Claims Act].' Indeed, that phrase has
been used consistently in all versions of ORS 30.275(1), from before 1973 up to
the present, to the same effect: as a limitation on the application of the notice
provisions of ORS 30.275 to claims that are within the Oregon Tort Claims Act.
Therefore, the sentence requiring notice for such claims does not, by its terms,
cover the circumstances in this case, because this case does not purport to be
either an action against a public body or an action against an employee of a
public body, qua employee."

319 Or at 337 (alteration in original; first emphasis added; other emphases in
original).

10 In this case, plaintiff does not raise constitutional objections to the applica-
bility of the OTCA to its claims.

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The OTCA defines "tort" as follows:

" "Tort' means the breach of a legal duty that is imposed
by law, other than a duty arising from contract or quasi-
contract, the breach of which results in injury to a specific
person or persons for which the law provides a civil right of
action for damages or for a protective remedy."

ORS 30.260(8). The city argues that Comcast's declaratory
judgment claim alleged a "tort" claim because it asserted a
breach of a legal duty (the adoption of the 2002 and 2003
orders in violation of EC §§ 7.300 and 2.020); it alleged that
Comcast suffered a resulting injury (payment of excessive
permit fees); and Comcast sought a protective remedy (a
declaratory judgment).

We reject the city's argument. The city was engaged
in a species of lawmaking when it adopted the 2002 order.
The lawmaking process for a public body is itself governed by
a body of laws. For example, a public body, acting pursuant to
delegated authority, might adopt procedural rules, substan-
tive standards, or other requirements that control the proce-
dural or substantive components of its own lawmaking; it is
bound by those provisions while they are in effect. The public
body also is bound to observe any applicable procedural or
substantive statutory requirements that govern its lawmak-
ing authority. Finally, the public body must observe applica-
ble limits on its authority that derive from procedural or sub-
stantive requirements expressed in the state and federal
constitutions.

A violation of any of those lawmaking requirements
can lead to a legal challenge in court asserting that the
adopted law is invalid in whole or in part. In that context, the
court's inquiry focuses on whether the public body, during
the lawmaking process, complied with pertinent procedural
and substantive requirements for lawmaking, including any
limitations on its legal authority to enact the law in question.
See Planned Parenthood Assn. v. Dept. of Human Res., 297
Or 562, 564-65, 687 P2d 785 (1984) (discussing “proper
sequence of analyzing the legality of action taken by officials
under delegated authority" and concluding that challenged
agency rule "is invalid because it exceeds the statutory
authority of the agency").

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We may conceive of a court's consideration of such a
legal challenge to public body lawmaking as a determination
whether the public body breached a legal duty imposed by
law, within the meaning of ORS 30.260(8). And, at least
where a public body's lawmaking has resulted "in injury to a
specific person or persons for which the law provides a civil
right of action for damages or for a protective remedy," ORS
30.260(8), the act of lawmaking may be a component of a tort
claim.

However, a public body's act of adopting a law or rule
in violation of an applicable procedural or substantive
requirement is not a tort under ORS 30.260(8). The city fails
to distinguish between the enactment and the enforcement of
an unauthorized law or rule. The latter may be a tort. The
former is not, because the law provides no damages remedy,
or other protective remedy, for a public body's act of adopting
a law or rule allegedly in violation of an applicable procedural
or substantive requirement.

A declaratory judgment action is a particularized
legal device that enables the courts to answer legal questions
about the validity, among other things, of public body law-
making. See ORS 28.010 (declaratory judgment is "power to
declare rights, status, and other legal relations, whether or
not further relief is or could be claimed").11 That is the kind of
judgment that Comcast sought here. In its complaint,
Comcast sought a determination that the 2002 and 2003
orders were adopted in violation of the provisions of the
Eugene Code. In asking the court to determine whether the
city validly adopted the 2002 and 2003 orders, Comcast did
not claim that the city was liable for a tort.

11 When Comcast filed its complaint in 2003, ORS 28.010 (2001) provided:

"Courts of record within their respective jurisdictions shall have power to
declare rights, status, and other legal relations, whether or not further relief is
or could be claimed. No action or proceeding shall be open to objection on the
ground that a declaratory judgment or decree is prayed for. The declaration
may be either affirmative or negative in form and effect, and such declarations
shall have the force and effect of a final judgment or decree."

That statute since has been amended, but in only a technical way. See Or Laws
2003, ch 576, § 302 (changing "declaratory judgment or decree" to "declaratory
judgment" and changing "final judgment or decree" to "judgment").

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A declaratory judgment may include a grant of fur-
ther relief by the trial court. See ORS 28.080 (setting out pro-
cedure to obtain further relief, when "necessary or proper";
party must file petition, and adverse party must be given
reasonable notice).12 Comcast argues that it did not request
further relief for any injury; its claim was, instead, a chal-
lenge to the validity of the city's order. The principal question
under ORS 30.260(8), however, is whether the law provides a
civil right of action for a protective remedy for the claim
stated. A plaintiff's decision, when pleading a declaratory
relief claim, to request or refrain from requesting further
relief does not determine the answer to that issue. Properly
viewed, the court's authority under ORS 28.080 to grant fur-
ther relief is an adjunct to the court's statutory authority to
grant a declaratory judgment. The possibility that the court
might exercise that authority does not transform Comcast's
challenge to the city's orders into a "tort" claim.

In summary, we conclude that, in regard to the
declaratory judgment claim, the Court of Appeals reached
the right result, although we rely on a different reason. The
court erred when it concluded that the notice provisions of
the OTCA apply to only claims that would have been barred
by common-law sovereign immunity. Comcast's action for
declaratory judgment does not assert the city's liability for a
"tort," as defined in ORS 30.260(8).13 The city is not entitled
to summary judgment on that claim.

12 When Comcast filed its complaint in 2003, ORS 28.080 (2001) provided:

"Further relief based on a declaratory judgment or decree may be granted
whenever necessary or proper. The application thereof shall be by petition to a
court having jurisdiction to grant the relief. If the application be deemed suf-
ficient, the court shall, on reasonable notice, require any adverse party whose
rights have been adjudicated by the declaratory judgment or decree, to show
cause why further relief should not be granted forthwith."

Like ORS 28.010, that statute since has been amended, but in only a technical way.
See Or Laws 2003, ch 576, § 306 (changing "declaratory judgment or decree" to
"declaratory judgment" in two places).

18 Our conclusion answers the question presented by this case, but it may not
exhaust the interpretive possibilities regarding the applicability of ORS 30.260(8)
to declaratory judgment proceedings under ORS 28.010 to 28.160. For example, we
leave for another day the question whether the legislature, in granting authority to
the courts in ORS 28.010 to "declare rights, status, and other legal relations,
whether or not further relief is or could be claimed[,]" has "provide[d] a civil right of
action for damages or for a protective remedy[ ]" under ORS 30.260(8).

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The city also contends that Comcast's third cause of
action, for money had and received, constitutes a tort under
ORS 30.260(8). The city does not dispute that the statutory
definition of tort specifically excludes those breaches of legal
duty that are quasi-contractual. See ORS 30.260(8) (" "Tort'
means the breach of a legal duty that is imposed by law, other
than a duty arising from contract or quasi-contract * * *. "
(Emphasis added.)). The city also does not dispute that a
claim for money had and received is an action in quasi-
contract. See Davis v. Tyee Industries, Inc., 295 Or 467, 469-
70, 668 P2d 1186 (1983) (noting that claim for money had and
received was one specific form of general assumpsit, also
known as quasi-contract); Powell et al. v. Sheets et al., 196 Or
682, 699-700, 251 P2d 108 (1952) (claim for money had and
received is form of assumpsit; "[r]ecovery * * * is based on a
promise implied by law or quasi[-] contract") (internal quo-
tation marks omitted). Instead, the city argues that
Comcast's claim is, at its core, a tort, not a claim in quasi-
contract.

The city relies on this court's decision in Davis, 295
Or 467. In Davis, this court described how an action for
money had and received-one form of general assumpsit-
had begun as a promise implied by law to prevent unjust
enrichment. 295 Or at 469-70. Over time, however, the courts
also allowed that action in tort cases. Id. at 470. In that con-
text, a plaintiff was said to have waived the tort and sued in
assumpsit. Id. Often, plaintiffs did so in an attempt to obtain
advantages that were not available for the tort claim itself,
such as a longer statute of limitations or a more favorable
burden of proof. Id. at 471. The court concluded, however,
that "[p]leading a claim in assumpsit does not transform a
tort into a contract." Id. In support, the court quoted exten-
sively from one commentator, who argued:

" 'In all cases where a tort is waived, there is in fact no con-
tract. The cause of action is a tort, and the tort exists as the
cause of action and must be proved as the cause of action
from first to last. * * * [I]n the cases here considered there is
a recognized tort, it is the real cause of action, and the tort
limitation should control.'"

Id. at 471 (quoting Corbin, Waiver in Tort and Suit in
Assumpsit, 19 Yale LJ 221, 235-36 (1910)).

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The city contends that Comcast's claim for money
had and received is, in substance, a tort claim. Therefore, the
city argues, we should characterize Comcast's claim as a tort
under the OTCA and disregard the fact that Comcast's claim
is a quasi-contractual action for money had and received.

We are not persuaded by the city's argument. This
court's task in this context is to determine the intention of the
legislature when it excluded legally imposed duties "arising
from * * * quasi-contract" from the definition of "tort" in ORS
30.260(8).

In adopting the OTCA in 1967, the legislature incor-
porated no special definition of the term "tort." That
approach left to the courts the task of interpreting the term
"tort" for purposes of the OTCA. In 1976, this court addressed
the meaning of the term "tort" under the OTCA in Urban
Renewal Agency v. Lackey, 275 Or 35, 549 P2d 657 (1976),
which involved the question whether a governmental entity
had committed a "tort" by breaching a purely statutory duty.
This court stated that "any breach of a legal duty resulting in
damages, other than those duties created by contract, is a
tort, whether that duty is imposed by the common law or by
statute." Id. at 38. That statement did not mention legal
duties arising from quasi-contract.

In 1985, the legislature adopted the current statu-
tory definition of "tort," including the express exclusion of
legal duties arising from quasi-contract. Or Laws 1985,
ch 731, § 31.14 By that time, this court long had recognized
that an action for money had and received is designed to pre-
vent unjust enrichment through enforcement of a legally
imposed duty arising in quasi-contract. In Smith v. Rubel,
140 Or 422, 426-27, 13 P2d 1078 (1932), this court stated:

"An action for money had and received, although an
action at law, is governed by equitable principles. * * * The
action is liberal in form, and greatly favored by the courts.
\* \* \* The generally accepted test which determines whether
a recovery may be had is whether the defendant, in equity

14 The legislature in 1985 adopted the definition of "tort" as a part of ORS
30.265(1). In 1987, the legislature deleted the statutory definition of "tort" from
ORS 30.265(1), and moved the definition without modification to the OTCA's list of
specially defined terms in ORS 30.260. Or Laws 1987, ch 705, §§ 6, 7.

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and good conscience, is entitled to retain the money to
which the plaintiff asserts claim. * * * The right to the
refund is based upon a promise to return which the law
implies, irrespective of any actual promise, and even
against the refusal of the wrongful party to make it."

In Powell, this court stated:

"In 58 CJS, Money Received, 906, § 1, it is stated:

" "The term "money had and received" is the technical
designation of a form of declaration in assumpsit, wherein
plaintiff declares that defendant had and received certain
money, etc. Although an action at law, an action for money
had and received is equitable in its nature and is governed
by equitable principles. It may, in general, be maintained
whenever one has money in his hands belonging to another,
which, in equity and good conscience, he ought to pay over
to that other. Recovery in such case is based on a promise
implied by law or quasi contract and on the equitable prin-
ciple that one who has been unjustly enriched at the expense
of another is required to make restitution.'"

196 Or at 700 (emphasis in Powell).

Those decisions indicate that, by 1985, Oregon law
was settled that an action for money had and received was a
claim based on a promise of restitution implied by law or
quasi-contract. In construing the legislature's intent in
excluding legal duties arising in quasi-contract from the
scope of the definition of "tort," we must be mindful of that
settled law as part of our analysis of statutory context. Owens
v. Maass, 323 Or 430, 438, 918 P2d 808 (1996). As this court
stated in Mastriano v. Board of Parole, 342 Or 684, 693, 159
P3d 1151 (2007), "[W]e generally presume that the legisla-
ture enacts statutes in light of existing judicial decisions that
have a direct bearing on those statutes."

When we apply those interpretive principles here, it
is clear that the legislature in 1985 used the term "quasi-
contract" to describe claims, including claims for money had
and received, that are grounded on the equitable principle
that one who has been unjustly enriched at the expense of
another must make restitution. The effect of the 1985 amend-
ment to the statutory definition of "tort," ORS 30.260(8), is to

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permit quasi-contractual claims, such as Comcast's, to pro-
ceed against a public body without the need to comply with
statutory notice requirements that apply to conventional tort
claims.

Davis, 295 Or 467, is of no assistance to the city.
Davis recognized that a claim for money had and received
may assert that the plaintiff's right to recover money wrong-
fully obtained or withheld arises from alleged tortious con-
duct. According to the Davis court, a plaintiff may recover
tort damages, including punitive damages, in the context of
an action for money had and received, but only if the plead-
ings and proof are sufficient to support a recovery of those
remedies. The court in Davis noted that an earlier case,
Adams v. Crater Well Drilling, Inc., 276 Or 789, 556 P2d 679
(1976), had sustained a claim for damages for tortious con-
duct in an action for money had and received. Davis, 295 Or
at 474-75. The Davis court held that the allegations before it
were insufficient to sustain an award of punitive damages,
but that the defendant had failed to object to either the plead-
ings or the sufficiency of the evidence. Consequently, the
court affirmed the award of punitive damages. Id. at 484.

Davis confirms that, with proper pleading and proof,
a plaintiff may recover certain tort remedies in an action for
money had and received. Those additional remedies are not
at issue here. The holding in Davis is consistent with our con-
clusion, discussed above, that an action for money had and
received, such as Comcast's action, is a claim based on quasi-
contract. Davis said nothing to change the availability of that
claim:

"We emphasize that the holding of this case in no way
limits the remedies which this court has repeatedly recog-
nized, remedies often referred to as constructive trust, res-
titution, quasi contract or unjust enrichment."

Id. at 479 n 9 (emphasis added).

The statutory definition of "tort" in ORS 30.260(8)
indicates that the OTCA does not apply to an action in quasi-
contract. If a plaintiff pleads a claim in quasi-contract, we
must give effect to the legislature's exclusion of quasi-
contract from the definition of tort. An action for money had

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and received asserting a theory of quasi-contract to avoid
unjust enrichment is not a "tort" under ORS 30.260(8).

Based on the foregoing, we conclude that the Court
of Appeals reached the correct result in this case. Neither
Comcast's declaratory judgment claim nor its claim for
money had and received are tort claims under ORS 30.260(8).
Consequently, those claims are not governed by the notice
requirements of the OTCA.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.