Linstrom v. Dept. of Rev.

ORDER ON PLAINTIFF’S FILINGS TC 5459 	Page 1 of 7
IN THE OREGON TAX COURT
REGULAR DIVISION
Property Tax
JERRY M. LINSTROM,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant,
and
LINCOLN COUNTY ASSESSOR,
Defendant-Intervenor.
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TC 5459
ORDER ON PLAINTIFF’S FILINGS
In this property tax case, Plaintiff appeals the real market value (RMV) for tax year 2021-
22 of a parcel of property on the Siletz River in Lincoln County (the Property). Plaintiff seeks an
RMV of $49,000. (See Ptf’s Am Compl, Ex 1 at 2A.) Defendant-Intervenor (the county) asks
the court to sustain the RMV of $102,500 as determined by the magistrate.1 Trial is set for the
week of March 4, 2024. This order addresses:
A. Plaintiff’s filings dated August 15, 2023, through October 16, 2023, and the county’s
response dated October 30, 2023;
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1 Defendant Department of Revenue has “tender[ed] the defense” of the assessment to the county. (See
Def’s Ans at 6.)

ORDER ON PLAINTIFF’S FILINGS TC 5459 	Page 2 of 7
B. Plaintiff’s discovery-related filings dated November 13, 2023, through November 16,
2023, the county’s responses dated November 21, 2023, and Plaintiff’s replies dated December
1, 2023 through December 3, 2023; and
C. The county’s requests for attorney fees and for damages under ORS 305.437.
A. 	Plaintiff’s August-October 2023, Filings
Plaintiff filed 21 documents with the court between August 15 and October 16, 2023.
None complies with Regular Division rules. None has a caption, each has the same title
(“Certificate of Service”) and none clearly expresses a motion, or a purpose or intention. At the
case management conference on October 25, 2023, the court determined that all of these filings
reduce to motions by Plaintiff that ask the court to rule as follows:
(1) The size of the walkway, ramp, and dock on the Property is 742 square feet
instead of 1,321 square feet, due to “downsizing” that occurred in June 2020;
(2) The property class code of the Property is not 401, but instead is 01 or 001;
(3) The land size of the Property is not 5,028 square feet, but instead is 3,750 square
feet;
(4) The Property is not “residential,” but instead is “riverfront” property; and
(5) The Property is “septic-denied, non/unbuildable.”
(See Statement of Jerry Linstrom, Case Management Conference, Oct 25, 2023, 2:25-2:34; see
also Ptf’s Am Compl, Ex 3.) After determining the content of Plaintiff’s motions at the case
management conference, the court directed the county to respond to them. The county’s
response, filed October 29, 2023, considers possible alternative readings of the motions and
argues separately as to each reading. (Inv’s Memo and Resp.)
1. 	Plaintiff’s Motions as Requests for Factual Rulings
Reading Plaintiff’s motions as requests that the court determine factual issues, for
example by summary judgment under Tax Court Rule (TCR) 47, the county argues that the

ORDER ON PLAINTIFF’S FILINGS TC 5459 	Page 3 of 7
motions are deficient because they fail to show that there is no genuine issue of material fact, and
they lack any argument that Plaintiff is entitled to prevail as a matter of law. (See Inv’s Memo
and Resp at 6-8.) As to the facts asserted in the motions, the county states that it either disagrees
or finds them irrelevant to determining the Property’s RMV. (See id.)
Plaintiff argues that the county must determine these facts before trial because “how can
my appraiser present to [the court] a true appraisal when the information [on the county’s
records] is not [corrected].” (Statement of Jerry Linstrom, Case Management Conference, Oct
25, 2023, 2:12.) To the extent that Plaintiff argues that he cannot prepare for trial unless the
county agrees with the facts above, Plaintiff’s argument is incorrect. Of course, it is in the best
interest of all concerned that the parties seek to agree before trial on as many relevant facts as
possible. However, when parties cannot agree on relevant facts, or when they cannot agree
which facts are relevant, the court must decide those issues based on the evidence at trial.
The court agrees with the county. Viewing Plaintiff’s August through October 2023
motions as motions for summary judgment or partial summary judgment, the court now denies
them and will decide the issues, to the extent relevant, at trial.
2. 	Plaintiff’s Motions as Motions to Compel the County to Change its Records
The county addresses an alternative reading of Plaintiff’s August to October 2023
motions as motions to compel the county to change its public records that describe characteristics
of the Property other than value, such as the square footage of the land or improvements, traits
such as “unbuildable” or “residential,” or the classification number used for trending purposes.
The county argues that Plaintiff has failed to show whether or how the Property’s value would
change if the county were to make these changes to its records. (See Inv’s Memo and Resp at 8-
11.) According to the county, only changes to the county’s records that could cause a change in
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ORDER ON PLAINTIFF’S FILINGS TC 5459 	Page 4 of 7
property value are relevant, and trial is necessary to determine whether, or to what extent, any
allegedly erroneous records affect the Property’s value.
At the October 25, 2023, case management conference, Plaintiff stated that determining
the correct value of the Property is only “part” of his goal for his appeal. (Statement of Jerry
Linstrom, Case Management Conference, Oct 25, 2023, 2:38-40.) He indicated that the other
part of his goal is to compel the county to “correct [the] information” identified in his motions.
(Id.)2 These statements suggest that Plaintiff fundamentally misunderstands what he can ask the
court to do in this case. To file a law suit in this court, a taxpayer must be “aggrieved” by an
action or omission of an assessor or other taxing authority, and the action or omission must
“affect” the taxpayer’s property. ORS 305.275(1). Oregon Supreme Court has held that these
requirements mean that a taxpayer must be “more than just dissatisfied” by the action or
omission. NW Medical Lab. V. Good Samaritan Hospital, 309 Or 262, 268, 786 P2d 718 (1990).
The taxpayer must show a “pecuniary harm,” which typically means showing that “property tax
bills * * * were improperly inflated.” Seneca Sustainable Energy, LLC v. Dept. of Rev, 363 Or
782, 797-98, 429 P3d 360 (2018).
The issue in this case is the value of the Property, not the state of the county’s records.
An assessor has many statutory duties, including recordkeeping responsibilities, but under the
2 Similarly, Plaintiff states, in two of his October 10, 2023, filings: “I’m asking, Judge Maneki: Motion to
enforce/rule on: Richard Davis Magistrate: Court Order: Dated 08/24/2022.” The county interprets these portions of
Plaintiff’s filings as a motion that this division of the court enforce an order of the Magistrate Division entitled
“Order on Plaintiff’s Motion for Defendant to Correct Tax Record Information,” in which the magistrate directed the
county to respond to Plaintiff’s requests to change data on the tax roll. (See Inv’s Memo and Resp at 6; Ptf’s Compl
at 17.) The county, noting that it promptly responded to the magistrate’s order, objects that this division lacks
jurisdiction to enforce the magistrate’s order. (See Inv’s Memo and Resp at 6.) The court agrees with the county
and takes the opportunity to remind Plaintiff that the proceedings in this division are a new trial of the value of the
Property. The Magistrate Division proceedings are finished; this division will not order enforcement of the
magistrate’s order. See ORS 305.425(1) (“All proceedings before the judge of the tax court shall be original,
independent proceedings and shall be tried without a jury and de novo.”); Tax Court Rule (TCR) Preface (“Regular
Division trials are de novo and are conducted without a jury.”).

ORDER ON PLAINTIFF’S FILINGS TC 5459 	Page 5 of 7
case law a taxpayer does not necessarily have the right to sue in this court over every alleged
recordkeeping failure. In this case, the court will not consider ordering the county to change data
in its records unless Plaintiff proves two things: first, that the county’s data are wrong and
Plaintiff’s alternative data are correct; and second, that changing those specific data on the roll
(as opposed to changing the overall value) is necessary to redress a pecuniary harm to Plaintiff’s
Property. Plaintiff has done neither of these things. The court now denies Plaintiff’s August to
October motions to the extent that they ask the county to change its records.
B. 	Plaintiff’s November 13-16, 2023, Discovery-Related Filings
On November 13, 2023, Plaintiff filed two documents entitled “Discovery Information
Requested for Up Coming Trial.” Each begins: “Plaintiff is requestion the ‘Missing
Information’ from the Lincoln County Tax Assessor’s Office, (the defendant), used in Magistrate
Court Case TC-MD 220086R, Comparable Sale Sheet, Exhibit H2.” There follow additional
lines with blanks for the “value” and “size” of various listed items. On the same day, Plaintiff
filed a third document, entitled “Court Order Motion: For Discovery of Information for Up
Coming Trial.” This document also bears the heading “‘Corrected Document.’” It lists some of
the same items as in one of the two earlier documents, but it is not identical with either and does
not identify the document or documents it is supposed to correct.
On November 15, 2023, Plaintiff filed another “Court Order Motion: For Discovery of
Information for Up Coming Trial.” It “request[s] the information from the 2016 Tax Year,” and
it proceeds to list various items with requests for size and/or value.3 	On November 16, 2023,
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3 On November 16, 2023, Plaintiff filed a similar document under the same title, also for tax year 2016,
with the handwritten notation: “Corrected Copy.”

ORDER ON PLAINTIFF’S FILINGS TC 5459 	Page 6 of 7
Plaintiff filed similar documents with the same title requesting similar information for the 2017,
2018, 2019, 2020, and 2021 tax years.
On November 21, 2023, the county filed a response to Plaintiff’s three filings dated
November 13, 2023, treating the November 13 “Corrected Document” as a replacement for the
first two. On November 21 and 22, 2023, the county filed a response to each of the other “Court
Order Motions.” On December 1, 2, and 3, 2023, Plaintiff filed replies, each entitled “Plaintiff’s
Answer to Intervenor’s Response of ‘Court Order Motion: For Discovery of Information for
Upcoming Trial.’”
In all of its responses, the county treats Plaintiff’s filings as motions to compel discovery
under TCR 46 and asks the court to deny them because (1) Plaintiff failed to first serve a
discovery request in a manner that complies with TCR 36; (2) Plaintiff failed to certify that he
had complied with the requirement in TCR 41 C to make a good-faith effort to confer with the
county; and (3) the motions violate various other procedural requirements under TCR 9 and 14.
The court agrees with the county’s interpretation of these filings as motions to compel
discovery. Plaintiff appears to understand the difference between asking an opposing party for
discovery under TCR 36 and asking the court to order that party to provide discovery under
TCR 46. The first two filings, on November 13, 2023, appear to be discovery inquiries under
TCR 36, but Plaintiff’s “Corrected Document” adds “Court Order Motion” to the title.
The court also agrees with the county’s objections. The court orders as follows:
(1) Plaintiff must request any discovery directly from the county before involving the
court. Plaintiff must do so in a manner that substantially complies with TCR 36.
Plaintiff must not file discovery requests with the court.
(2) If Plaintiff files a motion to compel discovery in the future, Plaintiff must include
the certification required in TCR 14 C.
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(3) 	Any 	future 	motions 	and 	filings 	by 	Plaintiff must 	substantially 	comply 	with 	the
court's 	rules. 	However, 	as 	an 	exception, 	no 	party 	need 	include 	a 	form 	of
order 	with 	a 	motion 	unless 	specifically 	directed 	by 	the 	court 	to 	do 	so.
C. 	Count); 	's 	Requests for Attorney 	Fees 	and 	Damages 	Under 	ORS 	305.43 7
The 	county 	argues 	that 	several 	of the 	deficiencies 	in 	both 	sets 	of Plaintiff's 	filings 	support
a 	claim 	for 	attorney 	fees 	and 	recovery 	of expenses 	for 	the 	time 	and 	costs 	to 	respond. 	(See, 	e.g,
lnv's 	Memo 	Resp 	Ptfs 	Facsimile 	Docs 	and 	Oral 	Requests 	for 	Orders 	at 	12-13 	(requesting
attomey's 	fees, 	costs, 	and 	disbursements); 	InV's 	Resp 	Ptf's 	"Court 	Order 	Motion" 	Faxed 	Nov 	15,
2023 	at 	5-6 	(same).) 	The 	county 	correctly 	points 	out 	that 	attorney 	fees 	and 	awards 	of damages
are 	available 	when 	a 	taxpayer 	asserts 	an 	objectively 	unreasonable 	position 	or 	files 	certain
motions 	Without 	substantial 	justification. 	See, 	e. g, 	ORS 	305.437 	(permitting 	court 	to 	award
damages 	to 	the 	department 	for 	frivolous 	or 	groundless 	proceedings); 	TCR 	46 	A(4) 	(allowing
court 	to 	award 	costs 	for 	motions 	to 	compel 	discovery). 	The 	award 	of attorney fees 	and 	statutory
damages 	is 	intended 	to 	deter 	conduct 	that 	is 	unfair 	or 	wastes 	time, 	or 	both. 	The 	court 	is 	not
presently 	inclined 	to 	grant 	an 	award 	of attorney 	fees 	or 	damages in 	connection 	with 	Plaintiff' s
filings 	described 	in 	this 	order, 	particularly 	if Plaintiff in 	future 	substantially 	complies 	with 	this
order 	and 	with 	the 	court's 	rules. 	The 	court 	will 	defer 	action 	on 	attorney 	fees 	and 	damages 	and
will 	consider 	that 	subject 	in 	the 	context 	of future 	steps 	in 	the 	case. 	Now, 	therefore,
1T 	IS 	SO 	ORDERED.
Dated 	this 	5th 	day 	of December, 	2023.
12/5/2023 	10:45:48 AM
(7
Judge 	Robert T. 	Manlcke
ORDER 	ON 	PLAINTIFF'S 	FILINGS 	TC 	5459 	Page 	7 	of 7